Filling vacancies in the executive branch and on the federal bench
The federal government selects candidates for high-level positions in the executive branch and in the judiciary in one of two ways: Senate confirmation or recess appointment.
The Constitution’s Appointments Clause stipulates,
“The President…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court, and all other Officers of the United States, when Appointments are not herein otherwise provided for, and which shall be established by Law.”
— ARTICLE II, SECTION 2, CLAUSE 2
The Constitution’s Recess Appointments Clause empowers the president to fill high-level positions in the executive branch and in the judiciary temporarily without Senate approval.
“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”
— ARTICLE II, SECTION 2, CLAUSE 3
Both ways of selecting high-level candidates for executive and judicial positions require the president and the Senate to act jointly. Senate confirmation requires senators to approve the president’s nominees. Recess appointment requires the Senate to adjourn for a sufficient period of time for the president to fill vacancies temporarily.
Both approaches also present Senate majorities and presidents with challenges to their confirming more nominees and making recess appointments. Senate confirmation gives a minority of senators an opportunity to slow down the confirmation process by filibustering (or threatening to filibuster) presidential nominees. Such obstruction forces Senate majorities to use the time-consuming cloture process to schedule up-or-down confirmation votes for nominees. Minority obstruction (or threats to obstruct) therefore limits the number of presidential nominations that the Senate can approve in a two-year period.
Recess appointment similarly requires senators to act prior to the president filling vacancies temporarily. In this case, senators must first vote to adjourn the Senate instead of voting to confirm the president’s nominees. The Constitution requires that the House of Representatives first consent to the Senate adjourning for more than three days. The Adjournment Clause stipulates,
“Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.”
— ARTICLE I, SECTION 5, CLAUSE 4.
In 2014, the Supreme Court expanded the three-day threshold to ten days for recess appointments made during an intra-session recess of the Senate (i.e., recesses that occur entirely within a single year during a particular Congress’s two-year existence). According to the Court’s opinion in National Labor Relations Board v. Noel Canning et al.
“In light of historical practice, a recess of more than 3 days but less than 10 days is presumptively too short to fall within the [Recess Appointments] Clause. The word “presumptively” leaves open the possibility that a very unusual circumstance could demand the exercise of the recess-appointment power during a shorter break.”
— NATIONAL LABOR RELATIONS BOARD V. NOEL CANNING ET AL. 573 U.S. 513, 3.
The Constitution’s requirement that the House approve the Senate’s adjourning for more than three days and the Supreme Court’s ruling in National Labor Relations Board v. Noel Canning et al. likely limits presidents’ ability to make recess appointments in periods of divided government. For example, the Democratic-controlled House is unlikely to approve a request by Senate Republicans to adjourn for more than ten days so that President Trump can make recess appointments.