Recess appointment
In modern times, the Senate is in session nearly year-round, making the recess appointment mechanism far less necessary or useful for upkeep of government function.
The Supreme Court affirmed that pro forma sessions are sufficient to prevent recess appointments and addressed other intricacies of the practice in NLRB v. Noel Canning (2014).
Washington appointed South Carolina judge John Rutledge as Chief Justice of the United States during a congressional recess in 1795.
[citation needed] 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 Catholic on the court.
As reported by Adam Serwer, writing for Mother Jones, the Congressional Research Service (CRS) talliedPresident Ronald Reagan ma[king] 240 recess appointments [during his time in office], [and] President George H. W. Bush ma[king] 77 recess appointments....[3][better source needed]George H. W. Bush appointed Lawrence Eagleburger as Secretary of State during a recess in 1992; Eagleburger, as Deputy Secretary of State, had in effect filled that role after James Baker resigned.
[4]During the last two years of the Bush administration, Democratic Senate Majority Leader Harry Reid sought to prevent recess appointments.
[citation needed] 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.
[citation needed] 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 sessions.
[citation needed] On April 15, 2020, while Congress was holding pro forma sessions due to the recess during the COVID-19 pandemic, President Trump threatened to adjourn both houses of Congress in order to make recess appointments for vacant positions such as the Federal Reserve Board of Governors and the Director of National Intelligence.
Scott, writing in 2007 in the Northwestern University Law Review, "there is a robust debate in the scholarly literature about the meaning of the Recess Appointments Clause.
According to Henry B. Hogue, writing for the Congressional Research Service:Recent Presidents have made both intersession and intrasession recess appointments [those between sessions/Congresses and those within sessions, respectively].
[citation needed] The view holds[weasel words] that the current interpretation allows appointments to be made during recesses too brief to justify bypassing the Senate.
[20][21][22] 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.
In this context, the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments".
Circuit, wrote "an interpretation of 'the Recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction.
On June 26, 2014, in a 9–0 ruling on the case of NLRB v. Noel Canning, the United States Supreme Court validated this practice of using pro forma sessions to block the president from using the recess appointment authority.
