Also known as: recess appointment · recess appointments · recess appointment power · recess appointments clause · recess appointment clause · Article II recess appointments
Written by attorneys — see sources below.
A constitutional power authorizing the President to make temporary appointments to offices that normally require Senate confirmation. The power 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 Smith seeks to fill a vacancy at the Federal Drug Review Center during a month-long Senate break. The Senate holds brief pro forma sessions every three days and announces it will not enter a formal recess. Smith appoints Dr. Lopez anyway. A pharmaceutical company challenges the appointment, and the court holds it invalid because the Senate never declared a recess.
President Jones makes a recess appointment of Ralph Richardson to lead a labor agency during a genuine inter-session recess. After the Senate reconvenes, Jones removes Richardson without cause. Richardson sues, claiming the appointment carried tenure protections. The court examines whether the recess appointment itself was valid under the clause before addressing removal.
Frank S. Myers was appointed postmaster at Portland, Oregon, of the first class on July 10, 1917, for a term of four years fixed by statute. On January 3, 1921, President Wilson directed his removal without the advice and consent of the Senate. Myers protested to the department that his removal was illegal and refused to surrender his office. He was, however, ousted and a successor appointed with the consent of the Senate. He brought suit in the Court of Claims for his salary from the date of his removal to the end of his term. The Court of Claims gave judgment against him. The case comes here on appeal. By act of Congress approved July 12, 1876, it was provided that postmasters of the first, second and third classes should be appointed and might be removed by the President by and with the advice and consent of the Senate. The term of the office was fixed at four years.
View caseDuring a Senate recess, President Ramirez appoints Renee Rogers to a temporary post on an adjudicatory commission. Rogers exercises only narrow fact-finding duties with no policymaking authority. A regulated party challenges the appointment as exceeding the recess power. The court first confirms the Senate was in recess before analyzing whether the limited role rendered the position an inferior office.
Congress enacted the War Claims Act of 1948, which created the War Claims Commission consisting of three members appointed by the President with the advice and consent of the Senate. The Commission was tasked with receiving and adjudicating claims for compensation of internees, prisoners of war, and religious organizations who suffered losses during World War II. The Act specified that the Commission would conclude its operations no later than three years after the expiration of the claims filing period, which was initially set at two years but later extended, and made no provision for the removal of commissioners. Myron Wiener was nominated by President Truman for a position on the Commission, confirmed by the Senate on June 2, 1950, and assumed office on June 8, 1950. On December 10, 1953, President Eisenhower removed Wiener from the Commission, citing the national interest in completing the administration of the War Claims Act with personnel of his own selection. The President then made recess appointments to fill the positions, including Wiener's, and subsequently nominated new members to the Senate on February 15, 1954. The War Claims Commission was abolished on July 1, 1954, by Reorganization Plan No. 1 of 1954. Wiener thereafter instituted an action in the Court of Claims to recover the salary he would have earned from the date of his removal until the Commission's termination on June 30, 1954. The Court of Claims dismissed the petition, leading to the grant of certiorari by the Supreme Court.
View caseThe 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, so the President cannot make recess appointments during that period.
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No. Even a lengthy break does not qualify if the Senate holds pro forma sessions and refuses to declare a recess. The formal declaration controls regardless of how little legislative business occurs.
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No. The power depends solely on whether the Senate is in a qualifying recess. Policy urgency or public health concerns do not create an exception when the Senate has kept itself in session through pro forma meetings.
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