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Congressional Research Service
Inforrning the legislative debate since 1914
Recess Appointments: A Legal Overview
S
March 19, 2025
The Constitution provides two methods by which the
President can appoint officers. One is through the
Appointments Clause; the other is through the Recess
Appointments Clause. This In Focus provides a legal
overview of appointment authority, recess appointments,
and potential issues for Congress.
Appointment Authority
The President's primary appointment power comes from
the Appointments Clause, which grants the President
authority to nominate, with the advice and consent of the
Senate, Ambassadors, other public Ministers and Consuls,
Judges of the supreme Court, and all other Officers of the
United States. This is the default method of appointment
for officers of the United States, but inferior officers may,
at Congress's direction through statute, be appointed by the
President alone, by the courts, or by the Heads of
Departments.
In addition, the Recess Appointments Clause vests the
President with the authority 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. That is, in certain circumstances when the Senate
stands in recess, the President can unilaterally appoint
individuals to temporarily fill positions that would
otherwise require Senate confirmation.
What Counts as a Recess Appointment?
In the 2014 case NLRB v. Noel Canning, the Supreme Court
ruled that, under the Recess Appointments Clause, the term
recess refers to both inter-session and intra-session
breaks. The Court also ruled that a Senate adjournment of
three days or fewer does not count as a recess because such
a break is not a significant interruption of legislative
business. The Court supported this conclusion by citing
the Constitution's requirement that both chambers of
Congress must agree to adjournments longer than three
days. The Court further concluded that a Senate break
lasting between three and ten days is presumptively too
short to fall within the Clause. This presumption, however,
could be overcome in some very unusual circumstance,
like a national catastrophe ... that renders the Senate
unavailable but calls for an urgent response. The Court
rejected the notion that political opposition in the Senate
would constitute the type of unusual circumstance that
would permit a recess appointment during a recess between
three and ten days.
The Supreme Court also ruled that a vacancy does not need
to arise during a recess for that vacancy to be filled with a
recess appointment. Based on pragmatic concerns and
historical practice, the Court concluded that the President
can fill a vacancy during a recess irrespective of when the
vacancy arose.
Finally, the Court concluded, for purposes of the Recess
Appointments Clause, that the Senate is in session when it
convenes for pro forma sessions, even if no business is
conducted, because the body still retains the capacity to
transact Senate business. Accordingly, a President may not
make recess appointments during an adjournment if the
Senate holds pro forma sessions that result in an
adjournment lasting fewer than ten days.
Recess Appointee Pay
Congress has enacted limitations on recess appointee pay.
Under 5 U.S.C. § 5503, if the position to which a recess
appointee was appointed became vacant while the Senate
was in session, the recess appointee cannot be paid until
they are confirmed by the Senate. There are three
exceptions to this restriction: (1) when the vacancy arose
within 30 days before the session ended; (2) when a
nomination to the position was pending when the Senate
recessed and the recess appointee is not the individual
nominated; or (3) when the Senate rejected the nomination
of someone other than the recess appointee to the position
within 30 days of the session's end. If an exception applies
to a recess appointee, the President must make a nomination
to the position within 40 days of the beginning of the
Senate's next session for the recess appointee to be paid.
Congress has also placed restrictions in various
appropriations acts that could impact the pay of recess
appointees who hold positions to which they were
nominated but rejected by the Senate. The Consolidated
Appropriations Act, 2008, provides that, hereafter, no
appropriation contained in this or any other Act can be
paid to individuals whose nominations to positions they
hold have been rejected by the Senate. In addition, the
Omnibus Appropriations Act, 2009, mandates that no part
of any appropriation contained in this or any other Act can
be paid to an individual holding an acting or temporary
position whose nomination for that position has been
withdrawn or returned to the President for a second time.
That restriction extends to each subsequent fiscal year until
otherwise changed by Congress.
Authority and Tenure
A recess appointee possesses the same legal authority as a
Senate-confirmed appointee. A recess appointee's
commission, however, expires at the End of [the Senate's]
next Session, whereas the service of a confirmed appointee
is not so limited.
In practice, this limitation means that a recess appointment
could last for up to two years. An individual who receives
an inter-session recess appointment-that is, an
appointment between sessions of the same or successive
Congresses-could serve until the end of the following
session, a period of less than a year under present
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