History of Recess Appointments Archives
History of Recess Appointments

The Federalist No. 67, written by Alexander Hamilton and published in March 1788, discussed the power of the executive to grant recess appointments under the US Constitution. According to Hamilton, the Framers of the US Constitution intended that the recess appointments clause at Article II, Section 2, Clause 3 supplement Clause 2 of the same section. The recess appointments clause states that “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.” Clause 2 states the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.” Hamilton argued that the recess power was an alternative, supplementary means to appoint officers and reduce the delay in filling vacancies.

In the years following ratification of the Constitution, presidents exercised the recess appointment power. The recess appointment allowed early presidents to fill vacancies that would occur during Congress’ six month recess.

The passage of the 20th Amendment decreased the recess between sessions of Congress. One of the most extensive exercises of the recess appointment power occurred during the presidency of Theodore Roosevelt. On December 7, 1903, Roosevelt issued 193 recess appointments during a Senate recess that lasted for a matter of seconds. President Dwight Eisenhower conducted two high profile recess appointments, the appointment of Chief Justice Earl Warren in October 1953 and Justice William Brennan in October 1956.

The federal courts explored [PDF] the recess appointment clause in three key cases. In 1962, in response to Eisenhower’s appointment of a lesser federal judge, the US Court of Appeals for the Second Circuit held in US v. Alloco that the president may exercise the recess appointment power to fill a vacancy that occurred while the Senate was in session. In 1985, the US Court of Appeals for the Ninth Circuit issued a similar holding in US v. Woodley, which continued to recognize the power of the president to fill all vacancies during the Senate’s recess, even those that came about while the Senate was in session. In 2004, the US Court of Appeals for the Eleventh Circuit held in Evans v. Stephens that the president can issue recess appointments during an intrasession recess.