Henry B. Hogue
Specialist in American National Government
Maureen Bearden
Information Research Specialist
Under the Constitution, the President and the Senate share the power to make appointments to the highest-level politically appointed positions in the federal government. The Constitution also empowers the President unilaterally to make a temporary appointment to such a position if it is vacant and the Senate is in recess. Such an appointment, termed a recess appointment, expires at the end of the following session of the Senate. This report identifies recess appointments by President Barack Obama, from the beginning of his presidency, on January 20, 2009, until June 3, 2013. The report discusses these appointments in the context of recess appointment authorities and practices generally, and it provides related statistics. Congressional efforts to prevent further recess appointments are also discussed.
As of June 3, 2013, President Obama had made 32 recess appointments, all to full-time positions. By the same point in his presidency, President William J. Clinton had made 36 recess appointments, 22 to full-time positions and 14 to part-time positions. President George W. Bush had made 120 recess appointments, 67 to full-time positions and 53 to part-time positions. Six of President Obama’s recess appointments had been made during recesses between Congresses or between sessions of Congress (intersession recess appointments). The remaining 26 had been made during recesses within sessions of Congress (intrasession recess appointments).
In each of the 32 instances in which President Obama had made a recess appointment, the individual had also been nominated to the position to which he or she was appointed. In all of these cases, a related nomination to the position preceded the recess appointment. In 19 of the 32 cases, as of June 3, 2013, the Senate had later confirmed the nominee to the position to which he or she had been recess appointed. With regard to the 13 remaining individuals, nominations of 3 were pending; nominations for the other 10 were not.
During the 110th, 111th, and 112th Congresses, the Senate periodically used pro forma sessions to prevent the occurrence of a recess of more than three days. There appears to have been an expectation that this scheduling would block the President from making recess appointments, based on an argument that an absence of the Senate of three days or less would not constitute a “recess” long enough to permit the use of this authority. However, consistent with a January 2012 opinion of the Office of Legal Counsel at the Department of Justice, the President reached a different conclusion as to the effect of this scheduling practice. On January 4, 2012, during a three-day period of adjournment between two pro forma sessions of the Senate, the White House announced President Obama’s intent to make four recess appointments.
As of June 3, 2013, two federal courts of appeals had issued decisions related to the 2012 appointments and had found the appointments at issue in each case to be unconstitutional. For further information on these cases and the issues involved, see CRS Report RL33009, Recess Appointments: A Legal Overview, by Vivian S. Chu; CRS Report R43030, The Recess Appointment Power After Noel Canning v. NLRB: Constitutional Implications, by Todd Garvey and David H. Carpenter; CRS Report R43032, Practical Implications of Noel Canning on the NLRB and CFPB, by David H. Carpenter and Todd Garvey; and CRS Report WSLG521, 3rd Circuit: President’s Recess Appointment Power Only Extends to Intersession Recesses, by David H. Carpenter.
Additional information on recess appointments may be found in other CRS reports: CRS Report RS21308, Recess Appointments: Frequently Asked Questions, by Henry B. Hogue; CRS Report
RL33310, Recess Appointments Made by President George W. Bush, by Henry B. Hogue and Maureen Bearden; and CRS Report RL32971, Judicial Recess Appointments: A Legal Overview, by T. J. Halstead.
Date of Report: June 11, 2013
Number of Pages: 20
Order Number: R42329
Price: $29.95
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