The U.S. Constitution allocates specific roles to both the President and the Senate with respect to the appointment of certain government officials. The Constitution provides two methods by which the President may make appointments. First, the Appointments Clause establishes that 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. Under the Appointments Clause, a nominee cannot assume the powers of the office for which he or she has been nominated until confirmed by the Senate. The second method for appointing certain government officials is provided under the Recess Appointments Clause. This Clause establishes that 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. It has generally been opined that the Recess Appointments Clause was designed to enable the President to ensure the operation of the government during periods when the Senate was not in session and therefore unable to perform its advice and consent function. Several declarations were made during the founding era regarding the purpose of the Clause; however, these declarations do not definitively indicate how the recess appointment power should be interpreted. For example, Alexander Hamilton referred to the recess appointment power as "nothing more than a supplement ... for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate." Similarly, Thomas McKean, a prominent figure of the American Revolution, stated during the ratification debates in Pennsylvania that the Senate need not "be under any necessity of sitting constantly, as has been alleged, for there is an express provision made to enable the President fill up all vacancies that may happen during their recess; the commissions, to expires at the end of the next session." The ambiguities of the Recess Appointments Clause and how it should be interpreted have been further complicated by the fact that the congressional schedule and travel limitations it appears to have been designed to address have undergone tremendous change since the founding period. Until the Civil War, Congress consistently met for relatively short sessions followed by long recesses, or breaks, of six to nine months. Congress largely adhered to this practice during and after the Civil War, but began to schedule habitually an "intra-session recess" of approximately two weeks from the end of December until the beginning of January. The recess practice of Congress further changed in the mid-20 th century, and has been characterized by more frequent intra-session recesses of shorter durations. Additionally, the length of an "inter-session recesses," that is, the adjournment between sessions of Congress, has also become shorter. Interpretations of the Clause have been further complicated by the evolution of its use by successive Presidents. Though used to foster administrative continuity, Presidents also have exercised their recess appointment power for political purposes throughout the history of the republic, giving rise to significant political and legal controversy. For instance, President Madison's recess appointments of Albert Gallatin, John Quincy Adams, and James A. Bayard as envoys to negotiate a peace treaty with Great Britain in 1813 prompted heated debate in the Senate. Presidents Jackson, Taylor, and Lincoln also made hundreds of recess appointments during their terms. Recess appointments to the judiciary were also common during the early years of the republic, with the first five Presidents making 31 such appointments, including 5 to the Supreme Court. In total, 12 Justices have received recess appointments to the Supreme Court, and many of these Justices participated in Court business prior to Senate action on their nominations. With the mid-19 th century phenomena of long congressional adjournments, frequent resort to recess appointments, and the rise of the spoils system in the federal government, Congress responded by imposing statutory restrictions on the President's appointment and removal power, including restrictions on paying certain classes of recess appointees. Accordingly, the circumstances that give rise to the President's ability to rely on the Recess Appointments Clause have been a matter of debate. There have been numerous contrary opinions from Attorneys General, legislators, and scholars, each promoting opposing interpretations particularly with regard to the meaning of the phrases—"the Recess of the Senate" and "Vacancies that may happen." Some have argued that these phrases should be interpreted narrowly, such that only very limited circumstances trigger use of the recess appointment power, while others have argued that these phrases should be interpreted broadly, such that various circumstances trigger use of the Clause. For the past several decades, these questions of interpretation had been deemed to be settled by the executive branch as the President applied, and the Senate generally accepted, a broad interpretation of the Recess Appointments Clause. However, with evolving legislative responses meant to curb the President's use of his recess appointment power, the Supreme Court had occasion to address the scope of this Clause and the meaning of these phrases for the first time. In 2014, the Court in Nat'l Labor Relations Bd. v. Noel Canning ( NLRB v. Noel Canning ) addressed three questions: 1. Whether the President's recess appointment power may be exercised during a recess that occurs within a session of the Senate ( i.e. , intra-session recess), or is instead limited to recesses that occur between enumerated sessions of the Senate ( i.e. , inter-session recess); 2. Whether the President's recess appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess; and 3. Whether the President's recess appointment power may be exercised when the Senate is convening every three days in pro forma sessions. In addition to reviewing the Court's analysis regarding these key interpretive questions, this report subsequently discusses statutory pay restrictions as a congressionally devised method to curb potentially politically motivated utilization of the recess appointment power, and concludes with a discussion on the authority and tenure of recess appointees. 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 (emphasis added). ~ Art. II, §2, cl. 3 As mentioned above, a functionalist interpretation of the phrases "the Recess of the Senate" and "Vacancies that may happen" has traditionally prevailed, permitting the President to exercise his recess appointment power during either an inter- or intra-session recess of the Senate and to fill any vacancy that exists regardless of when it arose. However, in 2013, the United States Court of Appeals for the D.C. Circuit (D.C. Circuit) in Noel Canning v. NLRB resurrected a formalist interpretation of these phrases that would have significantly curbed the President's authority under the Clause. In its decision, the D.C. Circuit declared that the President could only make recess appointments when the Senate entered into an inter-session recess at the end of Congress, and only to vacancies that arose during that inter-session recess. Because neither of those conditions were met in the facts underlying the Noel Canning appointments, the D.C. Circuit declared the three recess appointments made by President Barack Obama to the NLRB constitutionally invalid. Upon review, the Supreme Court unanimously affirmed that the recess appointments were invalid. However, the majority, in an opinion authored by Justice Breyer, rejected the D.C. Circuit's interpretation of these key phrases, while four Justices, concurring in judgment only, issued an opinion authored by Justice Scalia agreeing with the D.C. Circuit's formalist interpretation. Before delving into the Supreme Court's opinion in Noel Canning , this section first provides an overview of the historical interpretations of the phrases "the Recess of the Senate" and "Vacancies that may happen." With respect to chronology, the question of what constituted a recess, for purposes of the Clause, arose substantially later than the vacancy issue due to the fact that adjournments within Senate sessions were infrequent and of short duration in the early days of the republic. As congressional scheduling evolved and such intra-session recesses became longer and more frequent, the opportunity for such appointments increased. As such, the first formal Attorney General opinion on the subject was issued in 1901 by Attorney General Philander C. Knox. He concluded that the phrase applied only to adjournments between sessions of Congress, i.e. , inter-session recesses. The 1901 opinion placed significant weight on the use of the definite article "the," emphasizing that "[i]t will be observed that the phrase is ' the recess.'" The opinion further highlighted that if the phrase were read broadly, nothing would prevent an appointment from being made "during any adjournment, as from Thursday or Friday until the following Monday." This position was abandoned 20 years later. An opinion issued by Attorney General Harry M. Daugherty in 1921 declared that an appointment made during a 29-day intra-session recess was constitutional. The Daugherty opinion focused on the practical aspects of the recess appointment dynamic, stating that "[i]f the President's power of appointment is to be defeated because the Senate takes an adjournment to a specified date, the painful and inevitable result will be measurably to prevent the exercise of governmental functions." Even though he emphasized this functional approach, Attorney General Daugherty limited the scope of his opinion by declaring that "an adjournment for 5 or even 10 days [cannot] be said to constitute the recess intended by the Constitution."