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Constitutional text[ edit ] Article II, Section 2, Clause 3, commonly known as the Recess Appointment Clause, provides that, 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.
Congressional action to prevent recess appointments[ edit ] The Senate or House may seek to block potential recess appointments by not allowing the Senate to adjourn under Article 1, Section 5, Clause 4 of the Constitutionwhich provides that both Houses must consent to an adjournment.
Intrasession recess appointments were unusual, however, prior to the s. 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. Another argument maintains that recess appointments were to be made only during inter-session 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 view holds that the current interpretation 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 IIpresidents have sometimes made recess appointments when Senate opposition appeared strong in the hope that appointees might prove themselves in office and then allow opposition to dissipate.
Most recently, however, as partisanship on Capitol Hill has grown,  recess appointments have tended to solidify opposition to the appointee. It was expected that there would be a legal challenge to the appointments.
In this context, the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments".
Court of Appeals for the D. Circuitwrote "an interpretation of 'the Recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction.
This cannot be the law.
Noel Canning that the President could force a recess if he had enough congressional support: Regardless, the Recess Appointments Clause is not designed to overcome serious institutional friction.
It simply provides a subsidiary method for appointing officials when the Senate is away during a recess. Senate confirmed Cordray to a five-year term as Director. Noel Canningthere was a split among the circuit courts on the validity of intra-session appointments and on what vacancies can be filled using the Recess Appointment authority.
Following the intra-session appointment of William H. Court of Appeals for the Eleventh Circuita 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   held that the Constitution permitted both intra-session recess appointments and recess appointments to fill vacancies that "happened" prior to rather than during the congressional recess.
Noel Canning, Circuit docket in the Court of Appeals for the District of Columbia Circuitappealed a decision made by National Labor Relations Board NLRB members appointed, in what President Obama determined was an intra-session recess was decided in a three-member panel decision on January 25,that intra-session appointments were unconstitutional because the word "the" before the word "Recess" in the Constitution was determined to mean to limit it to only the inter-session recess, and it further limited the power by limiting it to only those vacancies that "happen" to occur during the inter-session break, not to vacancies that existed prior to the recess.
Circuit and held that the March appointment of Craig Becker to the NLRB was invalid because he was not appointed between sessions. This article needs additional citations for verification.
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