Recess appointment

A recess appointment is a temporary appointment made by the President of the United States to fill a vacant federal position while the United States Senate is in recess.

Article II, Section 2 of the U.S. Constitution requires the president to seek the advice and consent of the U.S. Senate when appointing individuals to serve as federal judges, ambassadors, Cabinet secretaries, and other executive branch positions. Excluding federal judges, there are over 1,300 executive branch positions that require Senate confirmation. However, the constitution also gives the president the 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."

The United States Supreme Court ruled in National Labor Relations Board v. Noel Canning Company (2014) that a president can make recess appointments during the recesses between formal Senate sessions (inter-session) and recesses that take place during formal Senate sessions (intra-session). The court also ruled that a president can only make recess appointments during a Senate recess that is at least ten days in length. Article I, Section 5 of the U.S Constitution requires both the House and Senate must consent to adjourn in order for either chamber to hold a recess lasting more than three days.

Recess appointments are temporary, and last through the end of the Senate's next session unless the Senate votes to confirm the official and make the appointment permanent. So, for example, if a president makes an inter-session recess appointment, it would last about a year through the end of the upcoming session. If a president makes an intra-session recess appointment, it would last through the rest of the current session and through the end of the next session, meaning it could last as long as about two years.

Ronald Reagan (R) made the most (240) recess appointments among presidents serving from 1981 to 2024, according to the Congressional Research Service. During this time period, Donald Trump (R) and Joe Biden (D) made no recess appointments during this time period because the Senate was never in recess for ten consecutive days during either Trump's first term or Biden's term in office.

This page provides additional information on the following topics:

• Historical use of recess appointments
• National Labor Relations Board v. Noel Canning Company

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Historical use of recess appointments

George Washington made the first recess appointments in U.S. history during the first-ever recess of the U.S. Senate, which took place from September 1789 to January 1790. Washington appointed three judges and one U.S. attorney during this time period. According to the National Archives, recess appointments, "allowed the President to temporarily place someone in office until the Senate had the chance to weigh in. In the early years of the Republic, this happened frequently as Congress was usually in session for less than half the year."

Looking at presidents who held office from 1981 to 2024, the use of recess appointments declined. Ronald Reagan (R) made the most recess appointments during this time period, with 240 appointments during his eight years in office. This averages to 30 appointments per year. Barack Obama (D) made the fewest, with 32 recess appointments during his two terms, an average of 4 per year. All 32 of Obama's recess appointments were made before the Supreme Court ruling in National Labor Relations Board v. Noel Canning Company. Donald Trump (R) and Joe Biden (D) made no recess appointments during this time period because the Senate was never in recess for ten consecutive days during Trump's first term or Biden's term in office. See the chart below

National Labor Relations Board v. Noel Canning Company (2014)

See also: National Labor Relations Board v. Noel Canning Company

In 2010, Noel Canning Co., a Pepsi-Cola distributor, entered into negotiations with its employee union. In December 2010, Noel Canning agreed to submit two wage and pension plans that would be subject to a vote of the union membership. The membership approved one of the proposals. Noel Canning, however, refused to include the changes in a new collective bargaining agreement. Noel Canning argued that the negotiations and proposals were not tantamount to a binding agreement.

The union filed a complaint with the National Labor Relations Board (NLRB). The union charged Noel Canning with unfair labor practices in violation of the National Labor Relations Act. An administrative law judge (ALJ) ruled that the proposal Noel Canning presented, which the union membership approved, was binding. The ALJ then ordered Noel Canning to sign the collective bargaining agreement. Noel Canning appealed that ruling, which the NLRB upheld.

Noel Canning Co. subsequently appealed to the United States Court of Appeals for the District of Columbia Circuit. Noel Canning argued that three of the five members of the NLRB "had been invalidly appointed, leaving the Board without the three lawfully appointed members necessary for it to act."

The NLRB panel that heard Noel Canning's appeal of the ALJ's order consisted of one member appointed by President Barack Obama (D) and confirmed by the U.S. Senate in 2010 and two members appointed by Obama without U.S. Senate confirmation in January 2012. The president appointed these individuals through the Recess Appointments Clause of the U.S. Constitution.

The Recess Appointments Clause normally gives the president authority to fill existing vacancies which during a congressional recess, but the U.S. Senate met in pro forma meetings every three business days between December 2011 and the end of January 2012. In light of these pro forma sessions, Noel Canning argued that the U.S. Senate was not in formal recess during the period in which the two members in question were appointed via the Recess Appointments Clause. Accordingly, Noel Canning argued that the two members in question were not eligible to be appointed under the Recess Appointments Clause because the U.S. Senate was not in recess.

The United States Court of Appeals for the District of Columbia Circuit agreed that the appointments fell outside the scope of the Recess Appointments Clause. The court held that the words "the recess of the Senate" in the clause did not include recesses occurring within a formal session of Congress (a.k.a. intra-session recesses). Instead, the court held that the words "the recess of the Senate" applied only to recesses between formal sessions (a.k.a. inter-session recesses). As the second session of the 112th Congress began on January 3, 2012, the day before the President's appointments, the appointments in question occurred during an intra-session recess. Therefore, the court held that the appointments fell outside the scope of the Recess Appointments Clause.

The court further held that the phrase "vacancies that may happen during the recess" applied "only to vacancies that come into existence during a recess." President Obama's appointees to the NLRB "were appointed ... before the beginning of the recess during which they were appointed. For this reason too the President's appointments were invalid." In light of this holding, the court held that the NLRB lacked a quorum of validly appointed members when it issued its order against Noel Canning. Accordingly, the NLRB's order was invalidated.

Supreme Court opinion

The judgment of the court was unanimous. Justice Stephen Breyer authored the opinion of the court for himself and Justices Ruth Bader Ginsburg, Elena Kagan, Anthony Kennedy, and Sonia Sotomayor. Justice Antonin Scalia authored an opinion concurring in the judgment only. Justice Scalia's opinion was joined by Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas.

Justice Breyer noted that the case presented three questions,

“

The first concerns the scope of the words 'recess of the Senate.' Does that phrase refer only to an inter-session recess (i.e., a break between formal sessions of Congress), or does it also include an intra-session recess, such as a summer recess in the midst of a session? ... The second question concerns the scope of the words 'vacancies that may happen.' Does that phrase refer only to vacancies that first come into existence during a recess, or does it also include vacancies that arise prior to a recess but continue to exist during the recess? ... The third question concerns calculation of the length of a 'recess. ... In calculating the length of a recess are we to ignore the pro forma sessions, thereby treating the series of brief recesses as a single, month-long recess?

”

In addressing the first question, Justice Breyer held that the phrase "recess of the Senate" covered both inter-session recesses and intra-session recesses "of substantial length." While asserting that the constitutional language was ambiguous, Justice Breyer wrote that the clause's purpose and history favored an interpretation that included intra-session recesses. In providing an extensive history of the clause, the court held that "if a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause ... And a recess lasting less than 10 days is presumptively too short."

In considering the second question, Justice Breyer held that the phrase "vacancies that may happen during the recess of the Senate" provided for any and all vacancies, "including vacancies that come into existence while the Senate is in session."

In examining the third question, Justice Breyer rejected the NLRB's argument that pro forma sessions must be considered as periods of recess. In examining the legitimacy of pro forma sessions, Justice Breyer noted, "for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business. The Senate met that standard here." Justice Breyer noted that deference to the Senate could not be absolute and that when the Senate is without capacity to transact Senate business, then the Senate "is not in session even if it so declares ... In that circumstance, the Senate is not simply unlikely or unwilling to act upon nominations of the President. It is unable to do so." Justice Breyer, however, noted that the Senate retained the ability to transact Senate business during the pro forma sessions at issue in this case and, thus, the Senate was in session when the president made his appointments to the NLRB under the Recess Appointments Clause. Accordingly, Justice Breyer held that the Recess Appointments Clause did not give the president the authority to make the appointments to the NLRB at issue in this case.

See also

• Appointment confirmation process
• Federally appointed officials of the United States
• National Labor Relations Board v. Noel Canning Company