Also known as: recess appointment · recess appointments · recess appointment power · recess appointments clause · recess appointment clause · Article II recess appointments
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional power authorizing the President to make temporary appointments to offices that normally require Senate confirmation. The power arises only during a Senate recess of sufficient duration. The Senate remains in session, and the power is unavailable, when it holds pro forma sessions without formally declaring a recess.
President Smith seeks to fill a vacancy at the Federal Drug Review Center during a month-long Senate break. The Senate holds brief pro forma sessions every three days and announces it will not enter a formal recess. Smith appoints Dr. Lopez anyway. A pharmaceutical company challenges the appointment, and the court holds it invalid because the Senate never declared a recess.
President Jones makes a recess appointment of Ralph Richardson to lead a labor agency during a genuine inter-session recess. After the Senate reconvenes, Jones removes Richardson without cause. Richardson sues, claiming the appointment carried tenure protections. The court examines whether the recess appointment itself was valid under the clause before addressing removal.
Select any source to read its text and confirm it supports the definition.
During a Senate recess, President Ramirez appoints Renee Rogers to a temporary post on an adjudicatory commission. Rogers exercises only narrow fact-finding duties with no policymaking authority. A regulated party challenges the appointment as exceeding the recess power. The court first confirms the Senate was in recess before analyzing whether the limited role rendered the position an inferior office.
The Senate is in recess only when it formally declares itself in recess. Holding pro forma sessions every three days without such a declaration keeps the Senate in session, so the President cannot make recess appointments during that period.
Supporting sources
No. Even a lengthy break does not qualify if the Senate holds pro forma sessions and refuses to declare a recess. The formal declaration controls regardless of how little legislative business occurs.
Supporting sources
No. The power depends solely on whether the Senate is in a qualifying recess. Policy urgency or public health concerns do not create an exception when the Senate has kept itself in session through pro forma meetings.
Supporting sources
…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…