| This article is part of the series: |
| United States Senate |
|---|
| Members |
|
Current U.S. Vice President President pro tempore (list) Presiding officer Party leaders and Assistants Party leadership of Republican Conference |
| Politics and procedure |
| Advice and consent Closed session (list) Cloture · Committees (list) Executive session · Morning business Filibuster · History · Quorum Quorum call Recess appointment · Salaries Seal · Holds Senatorial courtesy Standing Rules · Traditions Unanimous consent VPs' tie-breaking votes |
| Places |
| United States Capitol Senate Chamber Senate office buildings (Dirksen · Hart · Russell) |
A recess appointment is the appointment, by the President of the United States, of a senior federal official while the U.S. Senate is in recess. The U.S. Constitution requires that the most senior federal officers must be confirmed by the Senate before assuming office, but while the Senate is in recess the President can act alone by making a recess appointment. To remain in effect a recess appointment must be approved by the Senate by the end of the next session of Congress, or the position becomes vacant again; in current practice this means that a recess appointment must be approved by roughly the end of the next calendar year. Recess appointments are authorized by Article II, Section 2 of the U.S. Constitution, which states:
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.
Contents |
According to Henry B. Hogue, of the Government and Finance Division of the Congressional Research Service,[1]
Recent Presidents have made both intersession (between sessions or Congresses) and intrasession (during a recess within a session) recess appointments. Intrasession recess appointments were unusual, however, prior to the 1940s. Intrasession recess appointments have sometimes provoked controversy in the Senate, and there is also an academic literature that has drawn their legitimacy into question.
It has been argued that as the clause was originally understood, it was expected that if the Senate was in session when an office became vacant, the president would make a standard advice-and-consent appointment at that time.[2] The argument further maintains that recess appointments were only to be made during intersession recesses, which during the early days of the country lasted between six and nine months, and were therefore required to prevent important offices from remaining unfilled for long periods. The current interpretation, this view holds, allows appointments to be made during recesses too brief to justify bypassing the Senate.
Historically, presidents tended to make recess appointments when the Senate was adjourned for lengthy periods. Since World War II, presidents have sometimes made recess appointments when Senate opposition appeared strong, hoping that the appointee might prove himself or herself in office and allow opposition to dissipate. Most recently, however, as partisanship on Capitol Hill has grown recess appointments have tended to solidify opposition to the appointee.
Following the intrasession appointment of William H. Pryor, Jr. to the United States Court of Appeals for the Eleventh Circuit, a small number of criminal defendants whose appeals were denied by panels including Pryor appealed on the basis that Pryor's appointment was invalid. The Eleventh Circuit, in an en banc decision in Evans v. Stephens[3] held that the Constitution permitted both intrasession recess appointments and recess appointments to fill vacancies that existed prior to the congressional recess.
Presidents since George Washington have made recess appointments. Washington appointed South Carolina judge John Rutledge as Chief Justice of the United States during a congressional recess in 1795. Because of Rutledge's political views and occasional mental illness, however, the Senate rejected his nomination, and Rutledge subsequently attempted suicide and then resigned.
New Jersey judge William J. Brennan was appointed to the Supreme Court by President Dwight D. Eisenhower in 1956 through a recess appointment. This was done in part with an eye on the presidential campaign that year; Eisenhower was running for reelection, and his advisors thought it would be politically advantageous to place a northeastern Catholic on the court. Brennan was promptly confirmed when the Senate came back into session. Eisenhower made two other recess appointments, Chief Justice Earl Warren and Potter Stewart.
George H. W. Bush appointed Lawrence Eagleburger Secretary of State during a recess in 1992; Eagleburger had in effect filled that role after James Baker resigned.
According to the Congressional Research Service, President Bill Clinton made 139 recess appointments. President George W. Bush made 171 recess appointments, and as of December 8, 2011, President Barack Obama had made 28 recess appointments.[4]
President Bill Clinton made a recess appointment of Bill Lann Lee as Assistant Attorney General for civil rights, when it became clear that Lee's strong support of affirmative action would lead to Senate opposition. Similarly, when the Senate did not vote on his nomination of James Hormel to be ambassador to Luxembourg, Clinton made a recess appointment. Many people felt that the Senate's inaction was because Hormel was openly gay, and when he was appointed, became the first openly gay U.S. ambassador.
Three and a half weeks before the end of his presidency, Clinton used the recess appointment power to place Roger L. Gregory on the United States Court of Appeals for the Fourth Circuit. Gregory was the first African-American to serve on that court. This was the first time since President Carter that the recess appointment procedure had been used to select someone to an Article III judgeship. The office had been vacant for close to a decade since it had been created. After the Senate declined to take up Gregory's nomination, and the 2000 Presidential election was over, Clinton installed Gregory on the Fourth Circuit on December 27, 2000. Gregory's recess appointment would have lasted until the Senate recessed at the end of 2001. He was renominated by President George W. Bush on May 9, 2001, and on July 20, 2001, the Senate confirmed Judge Gregory
The appointment of Gregory raised questions about the meaning of the Recess Clause, Senate prerogatives, and the opportunity of a litigant in federal court to have a case handled by a judge with full independence. The constitutional questions involved are still unresolved and were discussed in a report by the Congressional Research Service.[5]
President George W. Bush appointed two judges during Senate recesses, William Pryor and Charles Pickering, to U.S. courts of appeals after their nominations were filibustered by Senate Democrats. Judge Pickering, whom Bush appointed to the Fifth Circuit, withdrew his name from consideration for renomination and retired when his recess appointment expired. Judge Pryor was subsequently confirmed by the Senate for a lifetime appointment to the Eleventh Circuit.
On August 1, 2005, Bush made a recess appointment of John Bolton, to serve as U.S. representative to the United Nations.[6] Bolton had also been the subject of a Senate filibuster. The filibuster concerned documents that the White House refused to release, which Democrats suggested may contain proof of Bolton's abusive treatment and coercion of staff members or of his improper use of National Security Agency communications intercepts regarding U.S. citizens. Having failed to win Senate confirmation, he resigned his office in December 2006 concurrently with the adjournment of the 109th Congress.[7]
On April 4, 2007, during the Easter recess of Congress, Bush announced three recess appointments. The first was Sam Fox to serve as U.S. Ambassador to Belgium.[8] Fox's appointment had been thwarted in Congress because he had donated $50,000 to the Swift Boat Veterans for Truth during the 2004 presidential campaign, a group whose advertisements many Democrats blamed for John Kerry's loss.[9] The second appointment announced that day was Susan Dudley to head the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget.
The third recess appointment on April 4 was Andrew G. Biggs to serve as Deputy Commissioner of the Social Security Administration.[10] Biggs was investigated by Senate Democrats in 2005, while serving as Assistant Commissioner for the Social Security Administration, concerning whether he violated a federal ban on congressional lobbying by federal employees when he edited the prepared testimony for a lobbyist appearing before a Democratic Policy Committee Social Security hearing as alleged by John Stanton in Congress Daily.[11]
On March 27, 2010, President Barack Obama made his first recess appointments with 15 appointees to boards and agencies including the contentious choice of union lawyer Craig Becker to the National Labor Relations Board, Alan D. Bersin to be a commissioner of U.S. Customs and Border Protection, Chai R. Feldblum to be a commissioner of Equal Employment Opportunity Commission, Victoria A. Lipnic to be a commissioner of Equal Employment Opportunity Commission, Francisco "Frank" J. Sánchez to be undersecretary of International Trade, Department of Commerce.[12] Several of the nominees, including Jill Long Thompson, Chai Feldblum, Mark Pearce, Victoria Lipnic, P. David Lopez and Jacqueline Berrien, later were confirmed by the full Senate during 2010, while several others, including Islam A. Siddiqui and Michael W. Punke, were confirmed in 2011.
On July 7, 2010, Obama made three more recess appointments: Donald Berwick to be the Administrator of the Centers for Medicare and Medicaid Services; Joshua Gotbaum to be a director of the Pension Benefit Guaranty Corporation; and Philip E. Coyle III to be Associate Director for National Security and International Affairs in the Office of Science and Technology Policy in the Executive Office of the President.[13] Of the three appointments, Berwick's was highly controversial, because his nomination had not been vetted by the United States Senate Committee on Finance and because those in opposition to the move suggested that Obama was trying to avoid tough questions about the recently passed healthcare reform law.[14] Of the three, Gotbaum later was given full confirmation by the Senate.
On August 19, 2010, Obama made four recess appointments: Mari Carmen Aponte to be Chief of Mission for El Salvador; Elisabeth Hagen to be Under Secretary for Food Safety in the United States Department of Agriculture; Winslow Sargeant to be Chief Counsel for Advocacy in the Small Business Administration; and Richard Sorian to be Assistant Secretary for Public Affairs in the United States Department of Health and Human Services.[15] Hagen was confirmed by the Senate on September 16, 2010; Sargeant on November 21, 2011 [16], Aponte left her post on December 31, 2011 after failing to get a Senate majority on a cloture vote[17][18], Sorian has withdrawn?.
On December 29, 2010, Obama made six recess appointments: James M. Cole to be U.S. Deputy Attorney General, William J. Boarman to be United States Public Printer, Matthew Bryza to be U.S. ambassador to Azerbaijan, Robert Stephen Ford to be U.S. ambassador to Syria, Francis J. Ricciardone, Jr. to be U.S. ambassador to Turkey, and Norman L. Eisen to be U.S. ambassador to the Czech Republic.[19] Of the six, Ricciardone was blocked by Sen. Sam Brownback, who contended that Ricciardone was not sufficiently supportive of human rights while previously stationed in Cairo.[20] Bryza faced opposition in the Armenian-American community due to his unusually close ties to the Azerbaijan government, Ford was blocked by senators because of concerns that restoring an envoy to Damascus would be seen by Syrians as a reward for supporting terrorism and Eisen was seen as a long time critic of Republicans. However, in many regards, Cole was the highest-profile recess appointee, and Senate Republicans had blocked a vote on his nomination over his activities as an independent consultant at American International Group during its near-collapse and over previous comments about terrorism.[21] Cole later received full Senate confirmation, on June 28, 2011, while Ford and Ricciardone won full Senate confirmation on October 3 and October 4, 2011, respectively.
Sometimes, especially when the Senate is not controlled by the same political party as the President, the Senate leadership will seek to block any potential recess appointments by having the Senate recess in short time increments, rather than for a longer period that would allow recess appointments to be made. For example, during the last two years of the George W. Bush administration, Senate Majority Leader Harry Reid prevented any further recess appointments. Bush promised not to make any during the August recess that year, but no agreement was reached for the two-week Thanksgiving break in November 2007. As a result, Reid did not allow recess of more than three days from then until the end of the Bush presidency by holding pro forma sessions.[22][23] Prior to this, there had been speculation that James Holsinger would receive a recess appointment as U.S. surgeon general.[24]