Recess Appointment

Recess Appointment in the United States

Appointment of an official by the chief executive to fill a vacancy while the Senate or state legislature is not in session. At the federal level, recess appointments are authorized under terms of Article II, Section 2, which states that Presidents “shall have 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 Senate may confirm the appointee when it returns. If it does not, the commission expires under terms of the last phrase of the constitutional directive. Similar language in state constitutions provides for recess appointments by governors. The power to make recess appointments allows an executive to act immediately, but it may also create political problems with the legislature. The question is when the executive may act. Must the vacancy actually occur while the legislature is in recess or may an executive simply not act on a vacancy until a recess occurs and then appoint a replacement? The latter position would, in effect, allow an executive to circumvent legislative review. The broader definition has been upheld in court cases. However, Congress has enacted a law that prevents payment of a salary to a recess appointee filling a vacancy that existed while the Senate was in session.

See Also

Advice and Consent (Judicial Personnel issue) Executive Appointment (Judicial Personnel issue).

Analysis and Relevance

The recess appointment allows an executive to fill a vacancy while the legislature is not in session. The “appointee” is then “in place” when the legislature returns. This places the burden of disrupting the operations of a court on the legislature if it fails to confirm. At the same time, the legislature will be able to examine interim performance in addition to whatever else it would have considered in its confirmation deliberations. Occasionally, this may be decisive, as in the case of John Rutledge in 1797. George Washington filled a Supreme Court vacancy with the recess appointment of Rutledge. Rutledge subsequently was publicly critical of the Jay Treaty, an agreement ratified by the Senate only days earlier. When the Senate returned from its recess, it failed to confirm Rutledge. Recess appointments are used fairly often, but executives have come to exercise some restraint in using them. Seldom will highly controversial persons or persons previously rejected by the legislature be nominated. The recess appointment is especially important at the state level, where some states do not have full-time legislatures and recesses are frequent and/or lengthy.

Notes and References

  1. Definition of Recess Appointment from the American Law Dictionary, 1991, California

Recess Appointment

Legislative Definition of RECESS APPOINTMENT

This Congressional concept is provided by the United States Congress website as a a basic reference document: A temporary presidential appointment, during a recess of the Senate, of an individual to a federal government position, where such appointment usually requires the advice and consent of the Senate.

Recess Appointment (in Politics)

Related to political science, the following is a definition of Recess Appointment in the U.S. practice of politics: A presidential appointment typically requiring Senate approval that is made during a Senate recess. To be confirmed, the appointment must be approved by the Senate by the end of the next session of Congress or the position becomes vacant again. Recess appointments are authorized by Article II, Section 2 of the U.S. Constitution.

Recess appointments permitted the president to make appointments when the Senate was adjourned for lengthy periods. More recently, however, the president has used the privilege to push through unpopular candidates. For example, during his second term, President Bush appointed several controversial candidates while the Senate was in recess. In 2007, Senate Majority Leader, Harry Reid, retaliated by holding pro forma sessions during Senate recesses. As a result, the Bush administration was unable to make further recess appointments.

Recess Appointment: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Recess Appointment. This part provides references, in relation to Recess Appointment, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Recess Appointment by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Recess Appointment and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Recess Appointment or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Recess Appointment and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Recess Appointment. Finding these decisions can be challenging. In many cases, researchers about Recess Appointment should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Recess Appointment when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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