Also known as: recess appointments
Written by attorneys — see sources below.
Constitutional authority permitting the President to make temporary appointments to offices requiring Senate confirmation when the Senate is in recess of sufficient duration. The Senate controls its own status and remains in session if it holds pro forma sessions without formally declaring a recess.
President Rivera seeks to install Ronald Reed as acting chair of a federal labor board during a three-week holiday period. The Senate holds brief pro forma sessions every three days and adopts a resolution stating it remains in session. Because the Senate has not formally declared a recess, the appointment exceeds the President's authority under the recess appointment power.
President Reed makes a recess appointment of Ruby Rivera to a claims commission. After the Senate reconvenes, the new President removes Rivera without cause. The validity of the initial recess appointment determines whether removal protections apply to the temporary officer.
Congress enacted the War Claims Act of 1948, which created the War Claims Commission consisting of three members appointed by the President with the advice and consent of the Senate. The Commission was tasked with receiving and adjudicating claims for compensation of internees, prisoners of war, and religious organizations who suffered losses during World War II. The Act specified that the Commission would conclude its operations no later than three years after the expiration of the claims filing period, which was initially set at two years but later extended, and made no provision for the removal of commissioners. Myron Wiener was nominated by President Truman for a position on the Commission, confirmed by the Senate on June 2, 1950, and assumed office on June 8, 1950. On December 10, 1953, President Eisenhower removed Wiener from the Commission, citing the national interest in completing the administration of the War Claims Act with personnel of his own selection. The President then made recess appointments to fill the positions, including Wiener's, and subsequently nominated new members to the Senate on February 15, 1954. The War Claims Commission was abolished on July 1, 1954, by Reorganization Plan No. 1 of 1954. Wiener thereafter instituted an action in the Court of Claims to recover the salary he would have earned from the date of his removal until the Commission's termination on June 30, 1954. The Court of Claims dismissed the petition, leading to the grant of certiorari by the Supreme Court.
View casePresident Rhodes issues a recess appointment of Roberto Reyes as postmaster. The Senate later refuses to confirm the nominee and the President removes Reyes. The dispute centers on whether the recess appointment created a valid tenure that limits subsequent removal authority.
Frank S. Myers was appointed postmaster at Portland, Oregon, of the first class on July 10, 1917, for a term of four years fixed by statute. On January 3, 1921, President Wilson directed his removal without the advice and consent of the Senate. Myers protested to the department that his removal was illegal and refused to surrender his office. He was, however, ousted and a successor appointed with the consent of the Senate. He brought suit in the Court of Claims for his salary from the date of his removal to the end of his term. The Court of Claims gave judgment against him. The case comes here on appeal. By act of Congress approved July 12, 1876, it was provided that postmasters of the first, second and third classes should be appointed and might be removed by the President by and with the advice and consent of the Senate. The term of the office was fixed at four years.
View caseThe Senate is in recess only when it formally declares itself in recess. Holding pro forma sessions every three days without a formal declaration keeps the Senate in session even if little business occurs.
No. Length matters only after the Senate has formally placed itself in recess. Pro forma sessions prevent the period from qualifying as a recess regardless of its duration.
No. Courts reject functional claims that the Senate is effectively unavailable when it holds pro forma sessions and states it is not in recess. The Senate's own formal actions control the constitutional analysis.
The officer lacks authority to act. Actions taken by that officer may be challenged and enjoined because the appointment never satisfied the constitutional prerequisite of a qualifying Senate recess.
…petition filed after July 21, 1921, the end of his term, amounted to $8,838.71. In August, 1920, the President made a recess appointment of one Jones, who took office September 19, 1920. The Court of Claims gave judgment against Myers, and this is an appeal from that judgment. The Court held that he had lost his right of…