Recess Appointments

[Under development]

A selected list of research resources related to presidential recess appointments:

Breaking: National Labor Relations Board v. New Vista Nursing and Rehabilitation, Case Nos. 11-3440, 12-1027, 12-1936 (May 16, 2013).

Books & Journal Articles
Congressional Hearings & Reports
Congressional Record
Congressional Research Service (CRS) Reports
Court Opinions & Litigation Documents
News Commentary
Office of Legal Counsel Opinions
Opinions of the Attorney General
Miscellaneous Items 

 

Court Opinions and Litigation Documents:

National Labor Relations Board v. New Vista Nursing and Rehabilitation, Case Nos. 11-3440, 12-1027, 12-1936 (May 16, 2013).

NLRB v. Canning,  Petition for a Writ of Certiorari (April 25, 2013).

Canning v. NLRB, No. 12-1115 (D.C. Cir. 2013). [Federal Appeals Court invalidates President Obama's appointment of three members to the NLRB during the 2012 winter congressional recess.]

State National Bank of Big Spring, et al v. Geither, et al,  No. 1:12-cv-01032-ESH (D.D.C. 2012)

Complaint (June 21, 2012)

Second Amended Complaint (February 19, 2013)

Paulsen v. Renaissance Equity Holdings, LLC, No. 1:12-cv-00350-BMC (E.D. N.Y. 2012)

National Association of Manufacturers, et al. v. National Labor Relations Board, et al., No. 1:11-cv-01629 (D.D.C. 2011).

Memorandum Opinion and Order (3/2/2012)
“This matter is before the Court because several plaintiffs have attempted to shoehorn a challenge to the President’s recent recess appointments into a pending APA case about the validity of a rule issued by the National Labor Relations Board…..The Court declines this invitation to take up a political dispute that is not before it, and the motion will be denied.”

Memorandum in Support of Motion for Leave to Supplement Complaints and Objection to Substitution of Defendants (1/13/2012)

Chamber of Commerce v. NLRB, No. 1:11-cv-02262 (D.D.C. 2011) complaint filed 12/20/11

Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005).   [President’s intrasession appointment of Judge William H. Pryor, Jr., to the Eleventh Circuit Court of Appeals]

Franklin v. United States, cert. denied, 544 U.S. 923 (2005)

Miller v. United States, cert. denied, 544 U.S. 919 (2005)

Mackie v. Clinton

The Senate’s Constitutional Authority to Advise and Consent to the Appointment of Federal Officers, Congressional Record S15266 (July 1, 1993). (Proquest Congressional)  [includes draft brief written by the Senate Legal Counsel in Mackie v. Clinton, D.D.C. No. 93-0032]

 

Opinions of the Attorney General:

Recess Appointments,” [by William P. Rogers]  41 Op. Att’y Gen. 463 (July 14, 1960).  (HeinOnline)

 The President is authorized to make recess appointments to fill vacancies which occurred while the Senate was in session.  The President is authorized to make recess appointments during the temporary adjournment of the Senate from July 3 to August 8, 1960.  The reconvening of the Senate on August 8, 1960, is not to be regarded as the “next Session” of the Senate within the meaning of Article II, section 2, clause 3 of the Constitution, but as the continuation of the second session of the 86th Congress.

Term of Office of Major General Patterson as Surgeon General – Recess Appointment,” [by Homer Cummings]  37 Op. Att’y Gen. 282 (October 3, 1933). (HeinOnline)

Opinion – President – Recess Appointment – Postmaster,” [by T. W. Gregory] 30 Op. Att’y Gen. 314, November 24, 1914. (HeinOnline)

President – Appointment of Officers – Holiday Recess,” [by P. C. Knox] 23 Op. Att’y Gen. 599 (December 24, 1901).  (HeinOnline)

The President is not authorized to appoint an appraiser at the port of New York during the current holiday adjournment of the Senate, which will have the effect of an appointment made in the recess occurring between two sessions of the Senate.
There is no distinction between an appointment and a nomination other than the fact that the President nominates for appointment when the Senate is in session, and appoints when he fills a vacancy temporarily during the recess of the Senate.

Executive Authority to Fill Vacancies,” October 22, 1823. (HeinOnline)

 ”The substantial purpose of the constitution was to keep these offices filled; and the powers adequate to this purpose were intended to be conveyed.”

Opinion on Recess Appointments,”  [by Edmund Randolph]  (July 7, 1792) (Source: The Papers of Thomas Jefferson Digital Edition, ed. Barbara B. Oberg and J. Jefferson Looney. Charlottesville: University of Virginia Press, Rotunda, 2008.)

 

Books and Journal Articles:

“Preserving the Appointments Safety Valve,” by Alexander L. Platt, 30 Yale Law and Policy Review (2012). (Draft available on SSRN)

“While the Senate Sleeps: Do Contemporary Events Warrant a New Interpretation of the Recess Appointments Clause?” by Blake Denton, 58 Catholic University Law Review  (2009). (Draft available on SSRN)

“When is the Senate in Recess for Purposes of the Recess Appointments Clause?,” by Michael A. Carrier, 92 Michigan Law Review (1994). (Draft available on SSRN)

“Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt,” by Seth Barrett Tillman, 101 Northwestern University Law Review Colloquy 94 (2007). (Draft available on SSRN)

“Keeping Recess Appointments in Their Place,” by Brian C. Kalt, Northwestern University Law Review Colloquy (2007). (Draft available on SSRN)

“Senate Termination of Presidential Recess Appointments,” by Seth Barrett Tillman, 101 Northwestern University Law Review Colloquy 82 (2007). (Draft available on SSRN)

“The Original Meaning of the Recess Appointments Clause,” by Michael B. Rappaport, 52 UCLA Law Review 1487 (2005). (Draft available on SSRN)

“Recess Appointments of Article III Judges: Three Constitutional Questions,” by Edward A. Hartnett, 26 Cardozo Law Review 377 (2006). (Draft available on SSRN)

“Recess Appointments and an Independent Judiciary,” by William Ty Mayton, Constitutional Commentary (2004). (Draft available on SSRN)

“Constitutional Restrictions on the Presidential Power to Make Recess Appointments,” by Stuart J. Chanan, 79 Northwestern University Law Review 191 (1984).

News Commentary:

Lyle Denniston, Recess appointments defended, SCOTUSblog (Apr. 25, 2013, 2:55 PM).

Recess Appointments: President as Ruler,” by Jonathan Turley, USA Today (February 15, 2012).

Democrats and Executive Overreach,” by Michael McConnell, Wall Street Journal (January 10, 2012).

Recess appointment is unacceptable,” by Chuck Grassley, USA Today (January 9, 2012).

Washington standoff,” by Bruce Ackerman, Los Angeles Times (January 6, 2012).

Games and Gimmicks in the Senate,” by Laurence H. Tribe, New York Times (January 5, 2012).

Obama’s recess appointments are unconstitutional,” by Edwin Meese III and Todd Gaziano, Washington Post (January 5, 2012).

Crippling the Right to Organize,” by William B. Gould IV, New York Times (December 16, 2011).

 

Congressional Hearings & Reports:

Executive Overreach: The President’s Unprecedented “Recess” Appointments”
February 15, 2012
(Hearing: U.S. House of Representatives, Committee on the Judiciary)

Statement of Judiciary Committee Chairman Lamar Smith Full Committee Hearing on “Executive Overreach: The President’s Unprecedented ‘Recess’ Appointments”

Witnesses:

“The NLRB Recess Appointments: Implications for America’s Workers and Employers”
February 7, 2012
(Hearing: U.S. House of Representatives,  Committee on Education and the Workforce)

Opening Statement:

Press Release and Photo Album:

Witnesses:

Inquiry as to what constitutes recess of Senate,” S. Rep. No. 58–4389 (1905).  (ProQuest Congressional)

 

 

Congressional Record:

The Senate’s Constitutional Authority to Advise and Consent to the Appointment of Federal Officers, Congressional Record S15266 (July 1, 1993). (Proquest Congressional)  [includes draft brief written by the Senate Legal Counsel in Mackie v. Clinton, D.D.C. No. 93-0032]

 

CRS (Congressional Research Service) Reports:

Recess Appointments: Frequently Asked Questions,”  by Henry B. Hogue (2012).  (OpenCRS)

Recess Appointments Made by President Barack Obama,” by Henry B. Hogue and Maureen Bearden (2012).  (FAS)

President Obama’s January 4, 2012, Recess Appointments: Legal Issues,” by David H. Carpenter, Vivian S. Chu, Alissa M. Dolan and Todd Garvey (2012). (FAS)

Recess Appointments: A Legal Overview,” by Vivian S. Chu (2012). (ProQuest)

Recess Appointments: Frequently Asked Questions,” by Henry B. Hogue (2011). (FAS)

Presidential Appointments to Full-Time Positions in Independent and Other Agencies During the 110th Congress,” by Maeve P. Carey and Henry B. Hogue (2011).  (OpenCRS)

Recess Appointments: A Legal Overview,” by Vivian S. Chu (2011). (ProQuest)

Supreme Court Nominations, 1789 – 2009:  Actions by the Senate, the Judiciary Committee, and the President,” by Denis Steven Rutkus and Maureen Bearden (2010).  (OpenCRS)

Supreme Court Appointment Process:  Roles of the President, Judiciary Committee, and Senate,” by Denis Steven Rutkus (2010).   (OpenCRS)

Supreme Court Nominations, 1789 – 2009:  Actions by the Senate, the Judiciary Committee, and the President,” by Denis Steven Rutkus and Maureen Bearden (2009).  (OpenCRS)

Recess Appointments Made by President George W. Bush, January 20, 2001-
October 31, 2008
,” by Henry B. Hogue (2008).  (OpenCRS)

Recess Appointments:  Frequently Asked Questions,” by Henry B. Hogue (2008).  (Senate.gov)

Presidential Transitions: Issues Involving Outgoing and Incoming Administrations,” by L. Elaine Halchin (November, 2008).  (OpenCRS)

Presidential Transitions: Issues Involving Outgoing and Incoming Administrations,” by L. Elaine Halchin (October, 2008).  (OpenCRS)

Presidential Appointments to Full-time Positions in Executive Departments During the 109th Congress, 2005-2006,” by Henry B. Hogue (2008). (OpenCRS)

Presidential Appointments to Full-Time Positions on Regulatory and Other Collegial Boards and Commissions, 109th Congress,” by Henry Hogue (2008).  (OpenCRS)

Recess Appointments: A Legal Overview,” by T. J. Halstead (2007).  (OpenCRS)

Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate,” by Denis Steven Rutkus (2007).  (OpenCRS)

Recess Appointments Made by President George W. Bush, January 20, 2001-
June 4, 2007
,” by Henry B. Hogue (2007).  (OpenCRS)

Recess Appointments:  Frequently Asked Questions,” by Henry B. Hogue (2007).  (OpenCRS)

U.S. Circuit and District Court Nominations by President George W. Bush
During the 107th-109th Congresses
,” by Denis Steven Rutkus and Kevin M. Scott (2007).  (OpenCRS)

Presidential Appointments to Full-time Positions in Executive Departments During the 108th Congress, 2003-2004,” by Henry B. Hogue (2007).   (OpenCRS)

Judicial Nominations by President Clinton During the 103rd-106th Congresses,” by Denis Steven Rutkus (2006).  (OpenCRS)

Recess Appointments: A Legal Overview,” by T.J. Halstead (2005). (OpenCRS)

The Chief Justice of the United States: Responsibilities of the Office and
Process for Appointment
,” by Denis Steven Rutkus and Lorraine H. Tong (2005). (OpenCRS)

U.S. Circuit and District Court Nominations by President George W. Bush
During the 107th and 108th Congresses
,” by Denis Steven Rutkus (2005).  (OpenCRS)

Judicial Recess Appointments: A Legal Overview,” by T.J. Halstead  (2005). (Proquest)

Intrasession Recess Appointments to Article III Courts,” by Henry B. Hogue (2004).  (Proquest)

Presidential Appointments to Full-Time Positions in Executive Departments During the 107th Congress, 2001-2002,” by Henry B. Hogue (2003).  (OpenCRS)

Recess Appointments of Federal Judges,” by Louis Fisher (2001). (Senate.gov)

Recess Appointments: Frequently Asked Questions,” by Henry B. Hogue (2002).  (OpenCRS)

Recess Appointments Made by President Clinton,” by Rogelio Garcia (2001). (Proquest)

Recess Appointments Made by President George Bush,” by Rogelio Garcia (1996). (Proquest)

Number of Recess Appointments, by Administration, from 1933 to 1984,” by Rogelio Garcia (1985). (Proquest)

Legal Issues Raised by Recess Appointment to Board of Governors of the Federal Reserve System,” by Richard Ehlke (1984). (Proquest)

Recess Appointments by President Carter January 20, 1977 – January 20, 1981,” by Justin Whittington and Sharon S. Gressle (1984). (Proquest)

Recess Appointments by President Ford August 9, 1974 – January 20, 1977,” by Justin Whittington and Sharon S. Gressle (1984). (Proquest)

Recess Appointments Made by President Reagan,” by Rogelio Garcia (1983). (Proquest)

 

 

Office of Legal Counsel Opinions:

Memorandum Opinion for the Counsel to the President:  Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions [by Virginia A. Seitz, Assistant Attorney General], Op. Off. Legal Counsel, (January 6, 2012).

Memorandum Opinion for the Counsel to the President: Reimbursement of Expenses under 5 U.S.C. Sec. 5503(a) [by Dawn Johnsen, Acting Assistant Attorney General, Office of Legal Counsel],  22 Op. Off. Legal Counsel 29 (February 2, 1998).  (HeinOnline)

Memorandum Opinion for the Deputy Counsel to the President: Recess Appointments during an Intrasession Recess [by Timothy E. Flanigan, Acting Assistant Attorney General, Office of Legal Counsel], 16 Op. Off. Legal Counsel 15 (January 14, 1992).  (HeinOnline)

The President may make interim appointments during an intrasession recess of eighteen days.

Permissibility of Recess Appointments of Directors of the Federal Housing Finance Board [by Timothy E. Flanigan, Acting Assistant Attorney General, Office of Legal Counsel], 15 Op. Off. Legal Counsel 91 (December 13, 1991). (HeinOnline)

Where the Senate has failed to act during a Session of Congress on the nomination of a person to an office, and that person is then serving in that office by recess appointment, the President may make a second recess appointment of that person to the position when the previous recess commission expires.

Memorandum Opinion for the Attorney General: Intrasession Recess Appointments [by J. Michael Luttig, Acting Assistant Attorney General, Office of Legal Counsel],  13 Op. Off. Legal Counsel 271 (August 3, 1989).  (HeinOnline)

The President may make appointments under the Recess Appointments Clause during an intersession recess of the Senate that is of substantial length.  A 33-day summer recess is of sufficient length to permit the President to make recess appointments.

Memorandum Opinion for the General Counsels’ Consultative Group: Common Legislative Encroachments on Executive Branch Authority [by William P. Barr, Assistant Attorney General, Office of Legal Counsel], 13 Op. Off. Legal Counsel 248 (July 27, 1989).  (HeinOnline)

Opinion: Recess Appointments Issues [by Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel],  6 Op. Off. Legal Counsel 585 (October 25, 1982) . (HeinOnline)

Opinion: 79-57 Memorandum Opinion for the Counsel to the President Constitutional Law – Ariticle II, Section 2, Clause 3 – Recess Appointments – Compensation (5 U.S.C. 5503) [by Larry A. Hammond, Acting Assistant Attorney General, Office of Legal Counsel], 3 Op. Off. Legal Counsel 314 (August 3, 1979).  (HeinOnline)

We are responding to your inquiry whether the President can make appointments under Article II, Section 2, Clause 3 of the Constitution during the forthcoming recess of the Senate, that is expected to last from about August 2 until September 4, 1979.  It is our opinion that the President has this power.

Opinion: 78-92 Memorandum Opinion for the Counsel to the President
Recess Appointments – Constitution (Article II, 2, cl. 3) – Legal Services Corporation – Effect of Statutory Holdover Provisions [by Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel],  2 Op. Off. Legal Counsel 398 (February 6, 1978).  (HeinOnline)

 

Miscellaneous Items

Letter from Alexander Hamilton to James McHenry, dated May 3, 1799.  The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P. Putnam’s Sons, 1904). In 12 vols. Vol. 7.

In my opinion, “vacancy” is a relative term, and presupposes that the office has been once filled. If so, the power to fill a vacancy is not the power to make an original appointment. The terms, “which may have happened,” serve to confirm this construction. They imply casualty, and denote such offices as, having been once filled, have become vacant by accidental circumstances. This, at least, is the most familiar and obvious sense, and, in a matter of this kind, it could not be advisable to exercise a doubtful authority.

It is clear that, independent of the authority of a special law, the President cannot fill a vacancy which happens during a session of the Senate.

Letter from Samuel Chase to James McHenry, dated July, 1799.  The Life and Correspondence of James McHenry, 1753-1816, ed. Bernard C. Steiner (Cleveland: Burrows Brothers, 1907).