Also known as: recess appointments clause · recess-appointment clause · recess appointments power
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional provision authorizing the President to fill vacancies in federal offices by granting commissions that expire at the end of the next Senate session. The authority arises only during a Senate recess of sufficient duration. The Senate remains in session, and the power is unavailable, when it holds pro forma sessions without formally declaring a recess.
President Rivera seeks to appoint Robert Rivera as acting head of a federal drug-review agency during a month-long Senate break. The Senate holds brief pro forma sessions every three days and states that it remains in session without declaring a recess. Rivera issues regulatory guidance that a pharmaceutical company challenges in court on the ground that the appointment exceeded presidential authority.
The President appoints Ralph Richardson as acting director of a consumer-protection bureau during a period when the Senate is holding pro forma sessions. A regulated company later sues, arguing that the appointment was invalid because no qualifying recess existed. The court examines whether the Senate's formal schedule prevented the recess-appointment power from arising.
Select any source to read its text and confirm it supports the definition.
The Senate is in recess only when it formally declares itself in recess. Holding pro forma sessions every three days without such a declaration keeps the Senate in session even if little or no business occurs.
Supporting sources
No. A break of sufficient length is necessary but not sufficient. The Senate must also have formally placed itself in recess. Pro forma sessions prevent that status regardless of the break's duration.
Supporting sources
No. The clause contains no emergency exception. The validity of the appointment turns solely on whether the Senate is in a qualifying recess, not on the importance or urgency of filling the position.
Supporting sources
The official lacked authority to act from the moment of the invalid appointment. Parties affected by those actions may challenge them in court on the ground that the officer was never properly in office.
…"no business... transacted," every Tuesday and Friday through January 20, 2012. S. J., 112th Cong., 1st Sess., 923. Invoking the Recess Appointments Clause—which gives the President the power "to fill up all Vacancies that may happen during the Recess of the Senate," Art. II, § 2, cl. 3—the President appointed the three members in question…