Article II, Section 2, Clause 3:
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
The Recess Appointments Clause was adopted by the Constitutional Convention without dissent and without debate regarding the intent and scope of its terms. In The Federalist No. 67, Alexander Hamilton refers to the recess appointment power as nothing more than a supplement . . . for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.
It is generally accepted that the clause was designed to enable the President to ensure the unfettered operation of the government during periods when the Senate was not in session and therefore unable to perform its advice and consent function. In addition to fostering administrative continuity, Presidents have exercised authority under the Recess Appointments Clause for political purposes, appointing officials who might have difficulty securing Senate confirmation.
Two fundamental textual issues arise when interpreting the Recess Appointments Clause. The first is the meaning of the phrase the Recess of the Senate.
The Senate may recess both between and during its annual sessions, but the time period during which the President may make a recess appointment is not clearly answered by the text of the Constitution. The second fundamental textual issue is what constitutes a vacancy that may happen
during the recess of the Senate. If the words may happen
are interpreted to refer only to vacancies that arise during a recess, then the President would lack authority to make a recess appointment to a vacancy that existed before the recess began. For over two centuries the Supreme Court did not address either of these issues, 1 leaving it to the lower courts and other branches of government to interpret the scope of the Recess Appointments Clause. 2
The Supreme Court ultimately adopted a relatively broad interpretation of the Clause in National Labor Relations Board v. Noel Canning. 3 With respect to the meaning of the phrase Recess of the Senate,
the Court concluded that the phrase applied to both inter-session recesses and intra-session recesses. In so holding, the Court, finding the text of the Constitution ambiguous, 4 relied on (1) a pragmatic interpretation of the Clause that would allow the President to ensure the continued functioning
of the federal government when the Senate is away, 5 and (2) long settled and established [historical] practice
of the President making intra-session recess appointments. 6 The Court declined, however, to say how long a recess must be to fall within the Clause, instead holding that historical practice counseled that a recess of more than three days but less than ten days is presumptively too short
to trigger the President's appointment power under the Clause. 7 With respect to the phrase may happen,
the majority, again finding ambiguity in the text of the Clause, 8 held that the Clause applied both to vacancies that first come into existence during a recess and to vacancies that initially occur before a recess but continue to exist during the recess. 9 In so holding, the Court again relied on both pragmatic concerns 10 and historical practice. 11
Even under a broad interpretation of the Recess Appointments Clause, the Senate may limit the ability to make recess appointments by exercising its procedural prerogatives. The Court in Noel Canning held that, for the purposes of the Recess Appointments Clause, the Senate is in session when the Senate says it is, provided that, under its own rules, it retains the capacity to transact Senate business. 12 In this vein, Noel Canning provides the Senate with the means to prevent recess appointments by a President who attempts to employ the subsidiary method
for appointing officers of the United States (i.e., recess appointments) to avoid the norm
13 for appointment (i.e., appointment pursuant to the Article II, sec. 2, cl. 2). 14