Recess Appointments
A temporary designation made by the President to fill a vacancy while the Senate is in recess.
Yesterday
Recess appointments trace their origins to Article II, Section 2, Clause 3 of the Constitution. This allows the President to temporarily fill vacancies when the Senate is not scheduled to be in session for a specific period of time.
Congress met infrequently during the early days of the Republic, sometimes only once a year, and travel to the capital was arduous and time-consuming. This clause was a practical solution, ensuring the government could continue functioning by empowering the President to fill critical roles even when the Senate was unavailable to confirm nominees. Appointees would often serve until the end of the next Senate session, which are currently one year in length (i.e., we are in the second session of the 118th Congress, which runs from January 3, 2024 through January 3, 2025, after which the first session of the new 119th Congress will commence).
The Long and Winding Road
Recess appointments have become a point of contention in modern governance. President Obama’s recess appointments to the National Labor Relations Board (NLRB) in 2012 triggered a legal challenge that led to the Supreme Court's ruling in NLRB v. Noel Canning. The Court found that these appointments violated the Constitution because the Senate was not officially in recess. The decision placed a limitation on when recess appointments could occur, requiring the Senate to be in recess for at least 10 days.
In recent years, the Senate has not officially recessed but has instead held pro forma sessions that, in part, thwart recess appointments. The potential resurgence of recess appointments during President-elect Trump’s second term has reignited debate and raised constitutional questions about executive authority.
A Hard Day’s Night
President-elect Trump’s apparent interest in recess appointments reflects the evolving use of this constitutional power as a means for navigating political obstacles. He has suggested that he may force Congress into recess to bypass the traditional Senate confirmation process and secure his preferred officials. It is also possible that the President-elect will utilize the Vacancies Act to appoint acting secretaries, something Mr. Trump relied heavily on in his first term, with 30 acting appointments across 20 cabinet-level positions in four years.
Separately, there has been some discussion of presidential power to convene and adjourn Congress as described in Article II, Section 3 of the Constitution. It is possible that the President-elect could use this approach to force the Senate into recess for the purposes of recess appointments for his more controversial picks. Such action could result in court review, as it did for President Obama with the NLRB. Critics contend that this approach risks undermining constitutional norms and tilting balance of power further in favor of the Executive Branch.