Recess Appointments Made by President Barack Obama
Released: 2017-09-07T00:00:00

U nder the Appointments Clause of the Constitution, the President and the Senate share the power to fill high-level politically appointed positions in the federal government. The Recess Appointments Clause of the Constitution also empowers the President unilaterally to make a temporary appointment to such a position if it is vacant and the Senate is in recess. Such an appointment, termed a recess appointment , expires at the end of the following session of the Senate. The records of debate at the Constitutional Convention do not provide much evidence of the framers' intentions in the Recess Appointment Clause. A discussion of the clause by Alexander Hamilton, in The Federalist Papers, suggests that its purpose was to provide an alternative method of appointment that would allow the filling of vacancies "without delay" during periods of Senate absence. Opinions by later Attorneys General also supported this general notion, suggesting that the purpose of the clause was to allow the President to maintain the continuity of administrative government through the temporary filling of offices during periods when the Senate was not in session, at which time his nominees could not be considered or confirmed. This interpretation is supported by the fact that both houses of Congress had relatively short sessions and long recesses during the early years of the Republic. In fact, until the beginning of the 20 th century, the Senate was, on average, in session less than half the year.

President Barack Obama made 32 recess appointments. Of the 32, he made 22 during recesses within the second session of the 111 th Congress. He made six during the recess between the adjournment of the 111 th Congress and the convening of the 112 th Congress.

From the 110 th Congress onward, it became common for the Senate and House to use certain scheduling practices as a means of precluding the President from making recess appointments. As discussed in greater detail later in this report, the practices do this by preventing the occurrence of a Senate recess of sufficient length for the President to be able to use his recess appointment authority.

President Obama made four recess appointments during a three-day recess between pro forma sessions of the Senate on January 3 and January 6, 2012, a period that was generally considered too short to permit recess appointments. The recess and pro forma sessions had been set as part of the Senate schedule for the period of December 20, 2011, through January 23, 2012, established by unanimous consent on December 17, 2011. This schedule provided for a series of pro forma sessions with intervening three- and four-day recesses. The recess during which the President made the appointments was part of a period of Senate absence that would otherwise have constituted an intrasession adjournment of 10 days or longer.

In an opinion regarding the lawfulness of these appointments, the Office of Legal Counsel at the Department of Justice argued that "the President may determine that pro forma sessions at which no business is to be conducted do not interrupt a Senate recess for the purposes of the Recess Appointments Clause." The U.S. Supreme Court later concluded otherwise in a case regarding three of the four appointments. It held that, for purposes of the 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." These three recess appointments were found by the Court to be constitutionally invalid.

This report identifies recess appointments made by President Obama. The report discusses these recess appointments in the context of recess appointment authorities and practices generally, and it provides related statistics. Congressional actions to prevent recess appointments prior to and during the Obama presidency, the President's unconstitutional appointments, and the judiciary's response are discussed in more detail in an appendix to the report. Additional information concerning recess appointments by President George W. Bush, general recess appointment practices, and legal issues pertaining to judicial recess appointments in particular may be found in other CRS reports.

Characteristics of Recess Appointments by President Obama

Full-Time and Part-Time Positions

All of the 32 recess appointments made by President Obama were to full-time positions. During his presidency, President William J. Clinton made 139 recess appointments, 95 to full-time positions and 44 to part-time positions. President George W. Bush made 171 recess appointments, 99 to full-time positions and 72 to part-time positions. Table 1 provides the number of recess appointments in each of these categories, by calendar year, for each of these presidencies. In general, the top leadership positions in the federal government are full-time positions to which appointments are made through the advice and consent process. For example, the full-time offices to which President Obama has made recess appointments included the Deputy Attorney General, the Deputy U.S. Trade Representative, and five Under Secretaries. Part-time positions can also be vested with statutory policy-making authority that can have broad impact. The members of the Defense Base Closure and Realignment Commission, who received recess appointments from President George W. Bush, could be considered among the positions in this category.

Within-Session and Between-Session Recess Appointments

The text of the Constitution states that the President has the authority to exercise the recess appointment power during "the Recess of the Senate." The precise meaning of this phrase has been a matter of some debate, which has also appealed to the distinction between two congressional recesses: those which occur within sessions of the Senate and those which occur between sessions.

The Constitution prescribes that a new regular session of Congress shall convene annually. An annual session of either house ends with a sine die adjournment; that is, an adjournment "without day," meaning that the chamber adjourns without setting a day for its next meeting, and therefore will not meet again until the day fixed by the Constitution (or by law) for the next annual session to convene. In current practice in this context, a "recess of the Senate" may refer either to a period between the sine die adjournment of one annual session and the convening of the next, or to a period within an annual session during which the Senate does not meet. A recess between sine die adjournment of one session and the convening of the next is also known as an intersession recess . A recess within a session is also known as an intrasession recess .

In the early days of Congress, lengthy intersession recesses were common. Before the 1940s, on the other hand, intrasession recess appointments were unusual, largely because the occasion seldom arose. Intrasession recess appointments have sometimes provoked controversy in the Senate, and some academic literature also has called their legitimacy into question. Legal opinions have also varied on this issue over time. In general, however, recent opinions have supported the President's use of the recess appointment authority during intrasession recesses. Since the 1940s, most Presidents have made recess appointments during both kinds of recess.

Notwithstanding the legal opinions and practices of the preceding decades, a Department of Justice legal opinion and two federal appeals cou rt decisions related to the four controversial 2012 recess appointments made by President Barack Obama raised questions about what a "recess" is for purposes of exercising the recess appointment power. In a June 26, 2014, opinion, the U.S. Supreme Court addressed these questions. It held that the President's recess appointment power extends to both intersession and intrasession recesses. The Court also held that the President may use the recess appointment power essentially only during a recess of 10 days or longer.

One reason for the controversy may be that, in one sense, intrasession recess appointments have afforded the President the ability to fill positions unilaterally for longer periods than would have been the case under intersession appointments. Under the constitutional provision previously quoted, a recess appointment expires at the sine die adjournment of the Senate's "next session." Accordingly, if the President makes a recess appointment during an intersession recess, the duration of the appointment will include the remainder of that recess and the full length of the session that follows. In the case of an intrasession recess appointment, on the other hand, the duration of the appointment will include the rest of the session in progress, the ensuing intersession recess, and the full length of the session that follows. At any point during a session, as a result, by making a recess appointment during a recess within a session, the President may fill a position not just for the rest of the session, but until near the end of the following session. This may add as much as a year to the duration of an appointment.

A comparison of two recess appointments during the 108 th Congress illustrates the difference in recess appointment duration that results from the timing of appointments. During the recess between the first and second sessions, President George W. Bush appointed Charles W. Pickering to an appeals court judgeship. Several weeks later, during the first recess of the second session, President Bush appointed William H. Pryor to a judgeship on another appeals court. Pickering's appointment expired after less than 11 months, at the end of the second session. Pryor's recess appointment would have expired after approximately 22 months, at the end of the first session of the 109 th Congress. Although the Pickering and Pryor recess appointments were only several weeks apart, Pryor could have served nearly twice as long because his appointment was made during an intrasession recess.

President Obama made 6 intersession recess appointments and 26 intrasession recess appointments.

Recess Appointments by Branch

Presidents have long made recess appointments to positions in all three branches of government. Recess appointments to advice and consent positions in the legislative branch have been the least common, in part because this branch has so few positions of this nature. Most recess appointments have been to executive branch positions. Presidents have also made recess appointments to positions in the federal judiciary.

In recent years, recess appointments to federal judgeships have been controversial. During the past 25 years, Presidents have made recess appointments to fill Article III judgeships on only three occasions. President Clinton recess appointed Roger L. Gregory to the U.S. Court of Appeals for the Fourth Circuit on December 27, 2000, a step that reportedly met opposition in the Senate. President Clinton's nomination of Gregory was not confirmed, but President George W. Bush renominated him and he was then confirmed by the Senate. On January 16, 2004, President Bush recess appointed Charles W. Pickering to the U.S. Court of Appeals for the Fifth Circuit. Pickering's appointment expired at the end of the second session of the 108 th Congress, and he retired. On February 20, 2004, President Bush named William H. Pryor to the U.S. Court of Appeals for the Eleventh Circuit Court of Appeals. Pryor was subsequently confirmed by the Senate.

President Obama made one recess appointment to the legislative branch (to the position of Public Printer), 31 recess appointments to executive branch positions, and no recess appointments to positions in the judicial branch.

Recess Appointments and Related Nominations

In most instances in which recent Presidents have made a recess appointment, they have also submitted a related nomination to the Senate. Often a recess appointment is preceded by such a nomination, but this is not required. Typically the individual who is given the recess appointment is also the nominee, but the President will sometimes use a recess appointment to fill a position while a different nominee to the same position is going through the Senate confirmation process. Under certain conditions, a provision of law may prevent a recess appointee from being paid from the Treasury unless the President submits a nomination to the position subsequent to the appointment.

When the President has made a recess appointment before, or soon after, submitting a nomination for the position, the action has sometimes been perceived as disrespecting the Senate consideration process. Critics of this practice argue that, absent an urgent need to fill a position immediately, the Senate should be given the opportunity to exercise its constitutional role before the President uses the recess appointment authority to do so.

Each of the 32 recess appointments made by President Obama was preceded by a related nomination of the individual given the recess appointment. The elapsed time between initial nomination and the announcement of the recess appointment ranged from 20 days (about three weeks) to 437 days (about 14½ months). The mean, or average, elapsed time between a nomination and an associated recess appointment announcement was 216 days (about seven months). The median elapsed time was slightly shorter: 211 days (approximately seven months).

In 20 of the 32 instances in which a related nomination was submitted, the Senate subsequently confirmed the nominee to the position to which he or she had been recess appointed. With regard to the 12 remaining individuals, the nominations of 9 were subsequently withdrawn by the President, and the nominations of the 3 remaining individuals were returned to the President, under Senate rules.

Obama Recess Appointment Data

The individual Obama recess appointments are shown in Table 3 . The table provides, for each appointment, the name of the appointee, the position to which he or she was appointed, and the date on which the appointment was announced. Entries in bold are recess appointments that were made during a recess within a session of Congress ( intrasession recess appointments). All other entries are recess appointments that were made during a recess between Congresses or between sessions of Congress ( intersession recess appointments).

Appendix. The Evolution of Congressional Scheduling Practices to Block Recess Appointments

From the 110 th Congress onward, it became commonplace for the Senate and House to use certain scheduling practices as a means of precluding recess appointments by the President. The practices do this by preventing the occurrence of a Senate recess of sufficient length for the President to be able to use his recess appointment authority. In a June 26, 2014, opinion, the U.S. Supreme Court held that the President may use the recess appointment power essentially only during a Senate recess of 10 days or longer. Furthermore, the Court concluded that, 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." This implies that the Senate would also determine if and when it will adjourn for a recess of 10 days or longer and thus allow for the possibility of recess appointments. In this way, the Court validated the use of congressional scheduling as a mechanism for preventing the President from making recess appointments.

One set of scheduling practices that has arisen was implemented by the Senate alone; no unusual action or inaction by the House was necessary. A second, related set of practices, which developed in the 112 th Congress, arose from the lack of a concurrent resolution of adjournment, which can result from a lack of consent by either the House or the Senate. This section describes these developments and the impact they have had on the incidence of recess appointments.

Background

The Constitution does not specify the length of time that the Senate must be in recess in order for the President to make a recess appointment. Over the last century, recesses both within and between sessions have tended to become shorter than recesses between sessions of Congress commonly used to be. This circumstance has brought to prominence the question of how long a recess must be before it may be appropriate for the President to take advantage of his constitutional power to fill vacancies through recess appointments.

Over time, the Department of Justice, through opinions of Attorneys General and the Office of Legal Counsel, has offered differing views on this issue. Prior to the 2014 U.S. Supreme Court opinion just discussed, no settled understanding appeared to exist. One view, which was discussed by Attorney General Harry M. Daugherty in a 1921 opinion, implied that a linkage might be established between the meaning of "the Recess of the Senate," for Recess Appointments Clause purposes, and the meaning of "adjourn for more than three days," for purposes of the Adjournments Clause. In the opinion, Daugherty argued that the President had the authority to make a recess appointment during an intrasession recess of 29 days. He stated,

If the President is empowered to make recess appointments during the present adjournment, does it not necessarily follow that the power exists if an adjournment for only 2 instead of 28 days is taken? I unhesitatingly answer this by saying no. Under the Constitution neither house can adjourn for more than three days without the consent of the other.

In 1993, a brief submitted by the Department of Justice in the case of Mackie v. Clinton articulated this argument more fully. Arguing that the recess during which the recess appointment at issue in the case was made was of sufficient length, the brief stated,

If the recess here at issue were of three days or less, a closer question would be presented. The Constitution restricts the Senate's ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives.... It might be argued that this means that the Framers did not consider one, two and three day recesses to be constitutionally significant.…

Apart from the three-day requirement noted above, the Constitution provides no basis for limiting the recess to a specific number of days. Whatever number of days is deemed required, that number would of necessity be completely arbitrary.

Pursuant to the Adjournments Clause, Congress generally provides for an intrasession recess of more than three days by adopting a concurrent resolution. This form of measure is appropriate for each house to consent to a recess of the other, because it requires adoption by both houses, but not action by the President. These resolutions typically specify the date or range of dates on which each of the chambers will adjourn and the date upon which each chamber will reconvene.

Practices Implemented Unilaterally by the Senate

The logic of the argument laid out in the Department of Justice brief appears to underlie congressional practices that were first implemented during the 110 th Congress. From November 2007 through the end of the George W. Bush presidency, the Senate structured its recesses in a way that was intended, at least initially, to prevent the President from making recess appointments. The approach involved the use of pro forma sessions, which are short meetings of the Senate or the House held for the purpose of avoiding a recess of more than three days and therefore the necessity of obtaining the consent of the other house. Normally, it is understood that during a pro forma session no business will be conducted.

On November 16, 2007, the Senate majority leader announced that the Senate would "be coming in for pro forma sessions during the Thanksgiving holiday to prevent recess appointments." The Senate recessed later that day and pro forma meetings were convened on November 20, 23, 27, and 29, with no business conducted. The Senate next conducted business after reconvening on December 3, 2007. During the remainder of 2007 and 2008, similar procedures were followed during most other periods that would otherwise have been Senate recesses of a week or longer in duration, including not only intrasession recesses, but also the period of sine die adjournment at the end of 2007.

The Senate pro forma session practice appears to have achieved its stated intent during the final 14 months of the Bush Administration: President Bush made no recess appointments between the initial pro forma sessions in November 2007 and the end of his presidency.

The Senate did not use the pro forma session practices during or after the first session of the 111 th Congress. Toward the end of the second session, however, the Senate structured its 2010 pre-election break as a series of shorter recesses separated by pro forma sessions. In this case, the use of the practice reportedly stemmed from a lack of agreement between the Senate majority leader and the Senate minority leader regarding the disposition of pending nominations over the break.

President Obama did not make any recess appointments during this period.

The procedures used by the Senate during the 110 th and 111 th Congresses supplemented the adjournment procedures typically used by the Senate and the House. In each of the instances where the pro forma session practice was used during these Congresses, the two chambers also adopted a concurrent resolution of adjournment. In each case, the schedule of pro forma sessions was established in the Senate by unanimous consent within the terms provided for in the concurrent resolution.

Senate Practices Necessitated by the Absence of House Consent to Adjourn

During the first few months of the 112 th Congress, the House and Senate passed concurrent resolutions of adjournment prior to periods of absence of more than three days. During this time, the Senate did not use the pro forma session practice during the resulting recesses.

During the middle of the first session of the 112 th Congress, a new related practice appeared to emerge. On May 25, 2011, in a letter to Speaker of the House John Boehner, 20 Senators urged him "to refuse to pass any resolution to allow the Senate to recess or adjourn for more than three days for the remainder of the president's term." The letter stated that "President Obama has used recess appointments to fill powerful positions with individuals whose views are so outside the mainstream that they cannot be confirmed by the Senate of the United States," and it referred to the Senate practices of 2007 as "a successful attempt to thwart President Bush's recess appointment powers." The request of the Senators appeared similarly intended to block President Obama from using the recess appointment power.

In a June 15, 2011, letter to the Speaker of the House, the House majority leader, and the House majority whip, 78 Representatives requested that "all appropriate measures be taken to prevent any and all recess appointments by preventing the Senate from officially recessing for the remainder of the 112 th Congress."

Between May 12, 2011, and the end of that year, no concurrent resolution of adjournment was introduced in either chamber. During periods of extended absence, the Senate used pro forma sessions to avoid recesses of more than three days.

Appointments During a Three-Day Recess Between Two Pro Forma Sessions

As previously discussed, on January 4, 2012, during a three-day recess between pro forma sessions of the Senate on January 3 and January 6, 2012, the White House announced President Obama's intent to make four recess appointments. The recess and pro forma sessions had been provided for as part of the Senate schedule for the period of December 20, 2011, through January 23, 2012, established by unanimous consent on December 17, 2011. This schedule, similar to those agreed to before extended Senate breaks in earlier months, provided for a series of pro forma sessions with intervening three- and four-day recesses.

Under the requirements of Section 2 of the Twentieth Amendment to the Constitution as well as the provisions of the Senate schedule agreed to on December 17, 2011, the second session of the Senate of the 112 th Congress convened on January 3, 2012. President Obama's recess appointments, announced on January 4, 2012, occurred during the first adjournment following the beginning of the session and would be considered intrasession recess appointments.

In an opinion regarding the lawfulness of these appointments, the Office of Legal Counsel at the Department of Justice argued that "the President may determine that pro forma sessions at which no business is to be conducted do not interrupt a Senate recess for the purposes of the Recess Appointments Clause." However, the constitutionality of three of the four recess appointments was challenged.

As noted above, in a June 26, 2014, opinion, the U.S. Supreme Court addressed this question, concluding that, 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." Furthermore, the Court held that the President may use the recess appointment power essentially only during a recess of 10 days or longer. A Senate recess of 3 days "is not long enough to trigger the President's recess appointment power," and a recess of more than 3 days but less than 10 is "presumptively too short to fall within the Clause" but "leaves open the possibility that a very unusual circumstance could demand the exercise of the recess-appointment power during a shorter break."

This implies that the Senate would determine if and when it will adjourn for a recess of 10 days or longer and thus allow for the possibility of recess appointments. Under the Adjournments Clause of the Constitution, however, such a determination requires the consent of the House. Consequently, either the Senate or the House can unilaterally prevent a Senate adjournment of 10 days or longer that would permit the President to exercise his recess appointment authority.