The Original Meaning of the Recess Appointments Clause


This Article explores the original meaning of the Recess Appointments Clause. Under the current interpretation, the Clause gives the President extremely broad authority to make recess appointments. The Article argues, however, that the original meaning of the Clause actually confers quite limited power on the President and would not permit most of the recess appointments that are currently made.
The language of the Recess Appointments 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." The Article makes two basic claims about the original meaning of the Clause. First, it argues that the Clause permits recess appointments only when an office becomes vacant during a recess and when the recess appointment is made during that recess. If an office was vacant while Congress was in session - either because the vacancy arose during a session or a vacancy that arose during a recess continued into a session - the President cannot fill that office with a recess appointment. The prevailing interpretation of the Clause, however, permits the President to make a recess appointment so long as the recess appointment is made during a recess, whether or not the vacancy existed when Congress was in session. Thus, the President can generally make a recess appointment for any office so long as he waits until there is a recess to do so.

The Article's second claim involves the original meaning of the term "recess." The Article maintains that the Constitution permits recess appointments only during an intersession recess - the recess between two sessions of a Congress - and does not allow such appointments during an intrasession recess - the typically shorter recess taken during a session. Under this view, the President generally would be able to make recess appointments only once each year during the intersession recess. The prevailing interpretation, however, allows the President to make recess appointments many times a year, including during intrasession recesses of ten days and perhaps of even shorter duration. Obviously, the prevailing interpretation provides the President with greater recess appointment authority than does the original meaning.

About the Author

Professor, University of San Diego School of Law.

By uclalaw