![]() The recess and pro forma sessions for the Senate had been set as part of their schedule on December 17, 2011, established by unanimous consent, for the period of Decemthrough January 23, 2012. Presidents often hope that opposition to their recess nominees will have lessened by the end of the next congressional session when their appointees must actually gain approval by the Senate or fail to retain their position. ![]() Presidents, on the other hand, have traditionally applied a much more liberal interpretation, using the clause as a means of bypassing Senate opposition to controversial nominees. The appointment power stated therein was to be used solely for the purpose of granting the President the authority to fill vacancies that actually occurred during a Senate recess. The Senate uses this creative, ingenious tool to block all presidential recess appointments it does not approve of.Īlthough the Senate may seem like the sneaky one here, it is merely trying to follow the original intent of the Founding Fathers in having a Recess Appointments Clause in the Constitution. Through the use of pro forma sessions, the Senate never technically goes on recess, therefore, the three days the President is waiting for to make those appointments he knows will never be confirmed by the Senate, will never come. Now, pro forma sessions are short meetings of the Senate or House held for the purpose of avoiding a recess of more than three days, and therefore, the necessity of complying with the constitutional obligation that neither chamber can adjourn for more than three days without the consent of the other. This clause provides that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days ….” In making this link, the DOJ implied that the President may only make a recess appointment during a recess of more than three days. Clinton, the Department of Justice (DOJ) submitted a brief linking the minimum recess length language in the Recess Appointments Clause with the language in the Adjournments Clause, U.S. Now, as to the technicalities recess appointments, the Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. The appointee then must later be approved by the Senate by the end of the next session of Congress, or when the position becomes vacant again. The person appointed by the President assumes his or her appointed position without the approval of the Senate. The President nominates individuals to these positions, and the Senate must confirm them before he can appoint them to office.Ī “recess appointment,” the exception to the rule stated above, is an appointment made by the President while Congress is not in session. Under the Constitution (article II, §2, clause 2), the President and the Senate share the power to make appointments to high-level policy-making positions in federal departments, agencies, boards, and commissions. The opinion released by Seitz advised that the President does in fact have that power. 3, to make recess appointments during the period between January 3 and January 23, despite the fact that the Senate was, and is, still holding periodic pro forma sessions. ![]() The Office of Legal Counsel (OLC) was asked specifically to analyze whether the President has authority under the Recess Appointments Clause, U.S. Seitz released an opinion letter titled, “Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions.” The letter addresses the concerns many people have, including the Senate, as to the Constitutionality of President Obama’s recently announced intent to make four recess appointments during the first adjournment following the beginning of this year’s first session. ![]() Last Friday, Assistant Attorney General Virginia A. ![]()
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