Are Recess Appointments Coming Back

As 47^th President of the United States, Donald Trump may be more focused and strategic than he was as the 45^th, evidence of which may be a tweet of his from Sunday:

Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner. Sometimes the votes can take two years, or more. This is what they did four years ago, and we cannot let it happen again. We need positions filled IMMEDIATELY!

Interestingly, the last two presidents, Mr. Trump included, have made no recess appointments. Congress has blocked them through strategic parliamentary maneuvering, but there is no guarantee that trend will continue. In fact, it is more likely the two Chambers will coordinate to remove those hurdles and allow President Trump to make recess appointments as he wishes.

Article II of the Constitution says, "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." Accordingly, President Bill Clinton made 139 recess appointments to full-time positions and President George W. Bush made 171. President Barack Obama made 32 before his ability to make more was blocked.

There are two types of Congressional recesses: intersession (between sessions of Congress) and intrasession (during a session of Congress). After a long debate, the Supreme Court ruled in the 2014 case Noel Canning that intrasession appointments were indeed constitutional, as long as the recesses were at least ten days long.

The Court also held that it was up to the House and Senate themselves to determine when they were or were not in session, which means that Congress retained the ability to block recess appointments entirely. For example, a single member from Virginia or Maryland could show up occasionally and bang a gavel a couple of times to keep Congress in pro forma session and avoid a ten-day recess. The House does not share the Senate's confirmation authority, but the Constitution bars either chamber from being in recess without the other's agreement, so either chamber can therefore block recess appointments.

A recess appointment requires no nomination or confirmation. It lasts through final (sine die) adjournment of the Senate's "next session." In modern practice, a session is one year, or half of a Congress. Therefore, intersession appoints can last nearly a year and intrasession appointments can last nearly two. Recess appointments are entirely different from appointments of "acting" personnel. "Acting" personnel are regulated by the Federal Vacancies Reform Act of 1998, which limits who can serve, for how long, and even what they can do. There are no limits on which offices can be filled by recess appointment. President Bush appointed three federal judges using the authority.

Republicans held House and Senate majorities for the remainder of Mr. Obama's term and Mr. Trump held on to those majorities in the first two years of his presidency. No use was made of his recess appointment power then, and neither he nor Mr. Biden have had a majority of both houses since that time. Republican are likely to have both majorities next year, and it is unsurprising that President-Elect Trump is seeking to reclaim this power if he remains concerned about having nominees quickly confirmed.