Recess appointment: Difference between revisions

[[New Jersey]] judge [[William J. Brennan]] was appointed to the Supreme Court by President [[Dwight D. Eisenhower]] in 1956 by a recess appointment. This was done in part with an eye on the presidential campaign that year; Eisenhower was running for reelection, and his advisors thought it would be politically advantageous to place a northeastern [[Roman Catholic Church|Catholic]] on the court. Brennan was promptly confirmed when the Senate came back into session. Eisenhower, in a recess appointment, designated [[Charles W. Yost]] as [[United States Ambassador to Syria]].<ref>{{cite web|url=http://www.msg-history.com/detachments/syria/syria_damascus.html|title=Marine Embassy Security Guard historical archives|website=Msg-history.com|access-date=December 10, 2016}}</ref> Eisenhower made two other recess appointments, Chief Justice [[Earl Warren]] and Associate Justice [[Potter Stewart]].

President [[George W. Bush]] made 171 recess appointments (average of 21 per year). During the last two years of the Bush administration, Democratic [[Senate Majority Leader]] [[Harry Reid]] sought to prevent further recess appointments. Bush promised not to make any during the August recess that year, but no agreement was reached for the two-week Thanksgiving break, in November 2007. As a result, Reid did not allow adjournments of more than three days from then until the end of the Bush presidency by holding ''[[pro forma#United States|pro forma]]'' sessions.<ref>{{cite web |url=http://thomas.loc.gov/home/ds/s1102.html |title=Days in Session Calendars U.S. Senate – 110th Congress 2nd Session |website=Thomas.loc.gov |date=December 31, 2008 |access-date=May 30, 2011 |archive-date=May 6, 2009 |archive-url=https://web.archive.org/web/20090506095036/http://thomas.loc.gov/home/ds/s1102.html |url-status=dead }}</ref><ref>{{cite web |url=http://democrats.senate.gov/calendar/2008-12.html |title=Senate Calendar – December |website=Democrats.senate.gov |access-date=May 30, 2011 |url-status=dead |archive-url=https://web.archive.org/web/20110606164135/http://democrats.senate.gov/calendar/2008-12.html |archive-date=June 6, 2011 }}</ref> Prior to this, there had been speculation that [[James W. Holsinger]] would receive a recess appointment as [[Surgeon General of the United States]].<ref>{{cite news |url=https://www.cbsnews.com/news/reid-to-bush-no-recess-appointments-wanted/ |title=Reid To Bush: No Recess Appointments Wanted |website=Cbsnews.com |date=November 16, 2007 |access-date=May 30, 2011}}</ref>

positions.<ref name=CRS-Hogue/> Over what would have traditionally been the 2011–12 winter recess of the [[112th United States Congress|112th Congress]], the Republican-controlled [[United States House of Representatives|House of Representatives]] did not assent to recess, specifically to block [[Richard Cordray]]'s appointment as Director of the [[Consumer Financial Protection Bureau]].<ref>{{cite web|url=https://talkingpointsmemo.com/dc/gop-furious-as-obama-recess-appoints-cordray |title=GOP Furious As Obama Recess Appoints Cordray |website=talkingpointsmemo.com |date=January 4, 2012 |access-date=December 10, 2016}}</ref> Both the House and Senate continued to hold ''pro forma'' sessions.<ref>{{cite news| url=https://www.wsj.com/articles/SB10001424052970204257504577150661990141658 | work=[[The Wall Street Journal]] | first=Michael | last=Mcconnell | title=Democrats and Executive Overreach | date=January 10, 2012}}</ref>

{{cite web|url=http://www.chicagotribune.com/news/politics/sns-rt-us-financial-regulation-cordraytre80312j-20120104,0,1634538.story|archive-url=https://archive.today/20120108080740/http://www.chicagotribune.com/news/politics/sns-rt-us-financial-regulation-cordraytre80312j-20120104,0,1634538.story|url-status=dead|archive-date=January 8, 2012|title=Stymied by Congress, Obama to boldly seat nominees|access-date=2012-01-05|date=2012-01-04|work=[[Chicago Tribune]]|author1=Clarke, Dave|author2=Matt Spetalnick|name-list-style=amp}}</ref><ref name=DROtNCaCAC>{{cite web|url=http://thecaucus.blogs.nytimes.com/2012/01/04/defying-republicans-obama-to-name-cordray-as-consumer-agency-chief/|title=Defying Republicans, Obama to Name Cordray as Consumer Agency Chief|access-date=2012-01-05|date=2012-01-04|work=[[The New York Times]]|author1=Cooper, Helene|author2=John H. Cushman, Jr.|name-list-style=amp}}</ref><ref name=BSOACC>{{cite web|url= https://www.nytimes.com/2012/01/05/us/politics/richard-cordray-named-consumer-chief-in-recess-appointment.html|title=Bucking Senate, Obama Appoints Consumer Chief|access-date=2012-01-05|date=2012-01-04|work=[[The New York Times]]|last=Cooper|first=Helene|author2=Steinhauer, Jennifer|author2-link=Jennifer Steinhauer}}</ref> [[White House Counsel]] [[Kathryn Ruemmler]] asserted that the appointments were valid, because the ''pro forma'' sessions were designed to, "through form, render a constitutional power of the executive obsolete" and that the Senate was for all intents and purposes recessed.<ref>{{cite web|url=http://thecaucus.blogs.nytimes.com/2012/01/04/obama-tempts-fight-over-recess-appointments/|title=Obama Tempts Fight Over Recess Appointments|first=Charlie|last=Savage|website=Thecaucus.blogs.nytimes.com|date=January 4, 2012|access-date=December 10, 2016}}</ref> Republicans in the Senate disputed the appointments, with [[Senate Minority Leader]] [[Mitch McConnell]] stating that Obama had "arrogantly circumvented the American people" with the appointments. It was expected that there would be a legal challenge to the appointments.<ref>{{cite web|url=https://www.reuters.com/article/us-financial-regulation-cordray-legal-idUSTRE80328G20120105|title=Analysis: Obama consumer chief decision under a legal cloud|date=January 5, 2012|website=Reuters.com|access-date=December 26, 2016|via=Reuters}}</ref>

On June 26, 2014, in a 9–0 ruling, the United States Supreme Court validated this practice of using pro forma sessions to block the president from using the recess appointment authority.  Justice [[Stephen Breyer]] wrote that the Constitution allows for the Congress itself to determine its sessions and recesses, that "the Senate is in session when it says it is", and that the President does not have the unilateral right to dictate Congressional sessions and thus make recess appointments.<ref name=9-0>{{cite news |title=Senate 9, President 0 |url=https://www.wsj.com/articles/senate-9-president-0-1403825223 |newspaper=[[The Wall Street Journal]] |date=June 26, 2014 |access-date=September 13, 2021 }}</ref> However, the decision allows the use of recess appointments during breaks within a session for vacancies that existed prior to the break.  Justice Breyer also noted that the president could force a recess if he had enough congressional support: <blockquote>"The Constitution also gives the President (if he has enough allies in Congress) a way to force a recess. Art. II, §3 ('[I]n Case of Disagreement between [the Houses], with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper'). Moreover, the president and Senators engage with each other in many different ways [*28] and have a variety of methods of encouraging each other to accept their points of view. 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."<ref>{{cite web|url=http://www2.bloomberglaw.com/public/desktop/document/NLRB_v_Noel_Canning_No_121281_US_June_26_2014_Court_Opinion|title=Bloomberg Law - Document – NLRB v. Noel Canning, 134 S. Ct. 2550, 189 L. Ed. 2d 538, 199 LRRM 3685, 82 U.S.L.W. 4599 (2014), Court Opinionwebsite2.bloomberglaw.com|access-date=December 10, 2016}}</ref></blockquote>