Also known as: recess appointments
Written by attorneys · grounded in primary & secondary sources — see below
Constitutional authority permitting the President to make temporary appointments to offices requiring Senate confirmation when the Senate is in recess of sufficient duration. The Senate controls its own status and remains in session if it holds pro forma sessions without formally declaring a recess.
President Rivera seeks to install Ronald Reed as acting chair of a federal labor board during a three-week holiday period. The Senate holds brief pro forma sessions every three days and adopts a resolution stating it remains in session. Because the Senate has not formally declared a recess, the appointment exceeds the President's authority under the recess appointment power.
President Reed makes a recess appointment of Ruby Rivera to a claims commission. After the Senate reconvenes, the new President removes Rivera without cause. The validity of the initial recess appointment determines whether removal protections apply to the temporary officer.
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President Rhodes issues a recess appointment of Roberto Reyes as postmaster. The Senate later refuses to confirm the nominee and the President removes Reyes. The dispute centers on whether the recess appointment created a valid tenure that limits subsequent removal authority.
The Senate is in recess only when it formally declares itself in recess. Holding pro forma sessions every three days without a formal declaration keeps the Senate in session even if little business occurs.
No. Length matters only after the Senate has formally placed itself in recess. Pro forma sessions prevent the period from qualifying as a recess regardless of its duration.
No. Courts reject functional claims that the Senate is effectively unavailable when it holds pro forma sessions and states it is not in recess. The Senate's own formal actions control the constitutional analysis.
The officer lacks authority to act. Actions taken by that officer may be challenged and enjoined because the appointment never satisfied the constitutional prerequisite of a qualifying Senate recess.
…petition filed after July 21, 1921, the end of his term, amounted to $8,838.71. In August, 1920, the President made a recess appointment of one Jones, who took office September 19, 1920. The Court of Claims gave judgment against Myers, and this is an appeal from that judgment. The Court held that he had lost his right of…