![]() ![]() The Court left open the possibility that some very unusual circumstance, such as a national catastrophe that renders the Senate unavailable, could require the exercise of the recess appointment power during a shorter break. The Court declined, however, to say how long a recess must be to fall within the Clause, instead holding that historical practice counseled that a recess of more than three days but less than ten days is presumptively too short to trigger the President’s appointment power under the Clause. The Court noted that Presidents have made thousands of intra-session recess appointments and that presidential legal advisors had been nearly unanimous in determining that the clause allowed these appointments. and (2) long settled and established practice of the President making intra-session recess appointments. ( The Senate is equally away during both an inter-session and an intra-session recess, and its capacity to participate in the appointments process has nothing to do with the words it uses to signal its departure.). relied on (1) a pragmatic interpretation of the Clause that would allow the President to ensure the continued functioning of the federal government when the Senate is away, 6 Footnote 5 (directing the Senate to choose a President pro tempore in the Absence of the Vice-President), and that there were examples of the Recess being used in the broader manner at the time of the founding. The Court noted that, while the phrase the Recess might suggest limiting recess appointments to the single break between sessions of Congress, the word the can also be used generically or universally, see, e.g., U.S. More specifically, the Court found nothing in dictionary definitions or common usage contemporaneous to the Constitution that would suggest that an intra-session recess was not a recess. In so holding, the Court, finding the text of the Constitution ambiguous, 5 Footnote ![]() ![]() With respect to the meaning of the phrase Recess of the Senate, the Court concluded that the phrase applied to both inter-session recesses and intra-session recesses. The Supreme Court ultimately adopted a relatively broad interpretation of the Clause in National Labor Relations Board v. For the early practice on recess appointments, see George Haynes, The Senate of the United States 77278 (1938). For prior Executive Branch interpretations of the Recess Appointments Clause, see 25 Op. 3 Footnoteįor lower court decisions on the Recess Appointments Clause, see, e.g., Evans v. leaving it to the lower courts and other branches of government to interpret the scope of the Recess Appointments Clause. For over two centuries the Supreme Court did not address either of these issues, 2 Footnote If the words may happen are interpreted to refer only to vacancies that arise during a recess, then the President would lack authority to make a recess appointment to a vacancy that existed before the recess began. The second fundamental textual issue is what constitutes a vacancy that may happen during the recess of the Senate. but the time period during which the President may make a recess appointment is not clearly answered by the text of the Constitution. The Senate may recess both between and during its annual sessions, 1 Footnoteįor a discussion of the procedural requirements that apply to adjourn, see ArtI.S5.C4.1 Adjournment of Congress. The first is the meaning of the phrase the Recess of the Senate. Two fundamental textual issues arise when interpreting the Recess Appointments Clause. 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. ![]() It is generally accepted that the 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. for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate. 67, Alexander Hamilton refers to the recess appointment power as nothing more than a supplement. The Recess Appointments Clause, authorizing the President to make temporary appointments when the Senate is not in session, was adopted by the Constitutional Convention without dissent and without debate regarding the intent and scope of its terms. 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. ![]()
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