It’s recess time!

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Article II Section 2 of the US Constitution reads “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.”

When the Constitution was ratified, Congress was a part time job.  Representatives met in Washington for approximately 3 months per year and then returned home to tend to their full time lives and occupations.  The recess clause allowed the President to ensure the smooth operation of government by granting the office the power to temporarily appoint senior officials without the advise and consent of the Senate, but required the Senate to confirm them prior to the end of its next session.

While many good and loyal servants have obtained their office through recess appointments, this power has also been used in controversial ways dating back to George Washington, who appointed John Rutledge to the position of Chief Justice to the Supreme Court with a recess appointment.  Rutledge held some controversial political views and had been accused of mental illness and the Senate declined to uphold the appointment.  Rutledge resigned the position after attempting suicide.

  

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Recesses in the Senate today are much shorter, leading some to question the continued need for this clause.  Additionally, the clause has been construed by the 11th Circuit in Evans v Stephens(387 F.3d 1220) to include intra-session recesses, which are typically even shorter, as well as inter-session breaks.

In recent years, the recess appointment power was used by President George W. Bush for the controversial nominations of John Bolton as UN Ambassador along with William Pryor and Charles Pickering to seats on the appellate court after Democrats filibustered the nominations.  In total, President Bush made 171 recess appointments.  After the Democrats took back the Senate, Majority Leader Harry Reid blocked further recess appointments for the rest of President Bush’s term in office by holding pro-forma sessions instead of letting the Senate stand in recess.

Last week, President Obama made 15 recess appointments, including the controversial nomination of former union lawyer Craig Becker to the  National Labor Relations Board.  For a full list of the recess appointments and some background information on each, see this article at the Blog of the Legal Times.