What is a Recess Appointment?

A recess appointment occurs when a President fills a vacant federal position that requires "advice and consent" of the Senate by bypassing the Senate because of Congressional recess. Per Article II, Section 2 of the Constitution, the Senate has the authority to provide "advice and consent" to the President on appointments:

... [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...

Normally, the President nominates an individual to fill a position and the Senate votes to either confirm or reject the nominee. However, in anticipation of the need to appoint someone when Congress was not in session, the founding fathers added:

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.

However, this recess option is not straightforward. Should the position be required to become vacant while the Senate is in recess for the President to have this authority? How many days "away" are required for the Senate to be considered "in recess"? For example, President Theodore Roosevelt made recess apppointments while the Senate was in recess for only a day.

Recess appointments are temporary. Appointees must be confirmed by the Senate after the next election. Presidents sometimes make recess appointments when they believe that they will face a "friendlier" Congress after an election.

The tension between the Executive and Legislative branches has not been adjudicated. Instead, there is a gentleman's agreement that the two will work together. For example, should a President use a recess appointment to circumvent normal (and Constitutionally mandated) "advice and consent," then Congress can refuse to pay the salary of the appointee. The Senate could also refuse to act on any future nominee, although this is only likely when the Senate is controlled by the opposite party.

President Eisenhower appointed three justices during recesses and immediately before an election: Earl Warren, William Brennan, and Potter Stewart. All were confirmed by a new Congress.

President Kennedy appointed Thurgood Marshall to the bench during a Senate recess to avoide opposition from Southern senators. Marshall was confirmed the following Congressional session.

In 1999, President Clinton violated protocol by reappointing Sarah Fox to the National Labor Relations Board without having included her name on a list of potential recess appointments. Two Republican Senators -- Inhofe (R-OK) and Craig (R-ID) -- threatened to block any future Clinton judicial nomination.

Also in 1999, President Clinton appointed James Hormel as ambassador to Luxembourg without Senate confirmation. Sen. Inhofe (R-OK) said then that "[Clinton] has shown contempt for Congress and the Constitution."

On 1 August 2005, President Bush appointed John Bolton to be US Ambassador to the United Nations using recess appointment authority. It had been almost five months since Bush nominated Bolton for the position and six weeks since a second attempt to bring his nomination to the floor failed. In May, the Senate Foreign Relations Committee refused to endorse his candidacy; Democrats had threatened to block the nomination should it reach the Senate floor. Senate Majority Leader Frist (R-TN) had threatened the "nuclear option" to forstall a Democratic filibuster.

Bolton is the first UN Ambassador since 1948 to hold the position due to a recess appointment. The appointment is, however, temporary. Bolton will have to undergo the full Senate confirmation process after mid-term elections in November 2006.

President Reagan made an average of 30 recess appointments each year; President Bush (the elder) made an average of 20 per year. President Carter averaged 17 per year, and President Clinton averaged only nine per year.


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