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Friday, May 24, 2013

Recess Appointments: A Legal Overview

Vivian S. Chu
Legislative Attorney

The U.S. Constitution explicitly provides the President with two methods of appointing officers of the United States. First, the Appointments Clause provides the President with the authority to make appointments with the advice and consent of the Senate. Specifically, Article II, Section 2, clause 2 states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by law.” Second, the Recess Appointments Clause authorizes the President to make temporary appointments unilaterally during periods when the Senate is not in session. Article II, Section 2, clause 3 provides: “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.”

While the Recess Appointments Clause enables the continuity of government operations, Presidents, on occasion, have exercised authority under the Clause for tactical or political purposes, appointing officials who might otherwise have difficulty securing Senate confirmation. The Recess Appointments Clause is not without its ambiguities, and the President’s use of this power in light of these ambiguities has given rise to significant political and legal controversy since the beginning of the republic.

This report provides an overview of the Recess Appointments Clause, exploring its historical application and legal interpretation by the executive branch, the courts, and the Comptroller General. It also reflects the U.S. Court of Appeals for the D.C. Circuit’s decision in Noel Canning v. Nat’l Labor Relations Board, which held that the President’s three recess appointments to the National Labor Relations Board (NLRB) on January 4, 2012, were invalid. Furthermore, congressional legislation designed to prevent the President’s overuse or misuse of the Clause is also explored.

Date of Report: April 24, 2013
Number of Pages: 33
Order Number: RL33009
Price: $29.95

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