Recess Appointments: A Legal Overview

Publication Date: July 2005

Publisher: Library of Congress. Congressional Research Service

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Research Area: Government

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Abstract:

Article II of the Constitution provides that the President "shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and counsels, 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." As a supplement to this authority, the Constitution further provides that "[t]he 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." The Recess Appointments Clause was designed to enable the President to ensure the unfettered operation of the government during periods when the Senate was not in session and therefore unable to perform its advice and consent function.

In addition to fostering administrative continuity, Presidents have exercised authority under the Recess Appointments Clause for political purposes, appointing officials who might have difficulty securing Senate confirmation. Coupled with the ambiguities inherent in interpreting the Clause, the President's use of the recess appointment power in such a fashion has given rise to significant political and legal controversy since the beginning of the Republic. This report provides an overview of the Clause, with a focus on its historical application and interpretation. This report is a companion piece to CRS Report RL32971, Judicial Recess Appointments: A Legal Overview, by T.J. Halstead (2005), which focuses specifically on the application and interpretation of the Clause in the judicial context.