Recess Appointments: A Legal Overview (CRS Report for Congress)
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| Release Date |
Revised Aug. 29, 2014 |
| Report Number |
RL33009 |
| Report Type |
Report |
| Authors |
Vivian S. Chu, Legislative AttorneyDivision |
| Source Agency |
Congressional Research Service |
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Summary:
The U.S. Constitution explicitly provides the President with two methods of appointing officers of the United States. First, the Appointments Clause provides the President with the authority to make appointments with the advice and consent of the Senate. Specifically, Article II, Section 2, clause 2 states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by law." Second, the Recess Appointments Clause authorizes the President to make temporary appointments unilaterally during periods when the Senate is not in session. Article II, Section 2, clause 3 provides: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."
While the Recess Appointments Clause enables the continuity of government operations, Presidents, on occasion, have exercised authority under the Clause for political purposes, appointing officials who might otherwise have difficulty securing Senate confirmation. This constitutional provision is not without its ambiguities, and the President's use of his recess appointment power in light of these ambiguities has given rise to significant political and legal controversy since the beginning of the republic. President's Obama's three recess appointments to the National Labor Relations Board (NLRB) on January 4, 2012, once again raised questions regarding the scope of the Recess Appointments Clause as well as the significance of the Senate's pro forma sessions in relation to the President's ability to exercise his recess appointment authority. The constitutionality of these recess appointments was challenged, and for the first time, the Supreme Court examined the scope of the Recess Appointments Clause and how it should be interpreted.
This report provides an overview of the Recess Appointments Clause, by first exploring its historical application and legal interpretation by the executive, legislative, and judicial branches. It then reviews the Supreme Court's decision in Nat'l Labor Relations Board v. Noel Canning in which all nine Justices affirmed the constitutional invalidity of these recess appointments. The Justices, however, were divided with respect to the proper interpretation of the Clause and the basis upon which the NLRB recess appointments would be ruled invalid. Also examined in this report is congressional legislation designed to prevent the President's overuse or misuse of the Clause, as well as the authority and tenure of recess appointees.
