Also known as: Recess Appointment Clause · recess appointment power
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional provision authorizing the President to fill vacancies by granting commissions that expire at the end of the Senate's next session. The provision applies only when the Senate is in recess of sufficient duration. The Senate remains in session, and no recess occurs, when it holds pro forma sessions without formally declaring itself in recess.
The President appointed Dr. Rivera acting director of a federal agency while the Senate convened brief pro forma sessions every three days and never declared a recess. A regulated company challenged an order issued by Dr. Rivera on the ground that the appointment lacked constitutional authority. The court held the appointment invalid because the Senate had remained in session.
The President named three members to the National Labor Relations Board between two pro forma sessions that the Senate had scheduled every Tuesday and Friday. An employer subject to a Board order argued that the appointees could not count toward a quorum. The court set aside the order because the Senate had not entered a recess.
Select any source to read its text and confirm it supports the definition.
Yes. The Senate controls its own status and is deemed in session when it convenes pro forma sessions without formally declaring a recess. Brief sessions that open and close the Senate on the record satisfy the constitutional requirement even if no substantive business occurs.
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Actions taken by an officer whose appointment exceeded the Recess Appointments Clause lack legal force. A court reviewing those actions may invalidate them on the ground that the officer lacked authority to act.
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No. The constitutional test turns on whether the Senate has formally declared itself in recess, not on how many members are physically present. Pro forma sessions preserve session status regardless of attendance or legislative output.
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Only if the Senate has formally declared a recess of sufficient duration. The clause covers both inter-session and intra-session recesses, but the Senate's formal declaration controls whether any break qualifies.
Supporting sources
…"no business... transacted," every Tuesday and Friday through January 20, 2012. S. J., 112th Cong., 1st Sess., 923. Invoking the Recess Appointments Clause—which gives the President the power "to fill up all Vacancies that may happen during the Recess of the Senate," Art. II, § 2, cl. 3—the President appointed the three members in question…