Recess appointments are a mechanism outlined in Article II, Section 2 of the Constitution that allows the President to fill vacancies that occur during the Senate’s recess. The concept was established to ensure the government could continue functioning smoothly even if a key official unexpectedly left their position. However, recess appointments are becoming increasingly rare, with both President Trump and President Biden having zero recess appointments during their terms. The last recess appointment was made by President Obama in 2012. Recess appointments are only valid until the end of the two-year Congress.
In order for a recess appointment to be made, both the House and Senate must be formally out of session for a period of time. The Supreme Court has set a precedent that a recess must last at least 10 days for a recess appointment to be valid. This presents a challenge for a President who might wish to make a recess appointment, as the House and Senate rarely adjourn for extended periods due to rules that require them to convene every three days. This is to prevent the potential for a recess appointment without the consent of both chambers.
The possibility of a recess appointment raises questions about the level of control that the executive branch can have over the appointment process. While the Constitution allows for recess appointments under specific circumstances, there are constitutional limits on the use of this power. The Supreme Court has ruled that if the Senate declares itself in session, the President cannot make recess appointments. The power to determine the rules of congressional proceedings lies with each body of Congress, which further limits the ability of a President to make recess appointments.
The current political landscape presents challenges for a President who may wish to make recess appointments. With Republicans controlling the House and the Senate by a small margin, getting approval for an adjournment resolution to create a recess for the purpose of making appointments would be difficult. Many members of Congress take their role in advising and consenting to appointments seriously and may be reluctant to allow circumvention of the process. Any attempt to make a recess appointment would likely face legal challenges and scrutiny.
In summary, the concept of recess appointments allows a President to temporarily fill vacancies that occur while the Senate is in recess. However, the practice of recess appointments is becoming less common, and there are constitutional limitations on when and how they can be made. The current political dynamics in Congress make it challenging for a President to successfully make recess appointments, as there are strict rules around when the House and Senate can adjourn. While recess appointments are theoretically possible, in practice, they are difficult to execute and face significant obstacles.
