When Is the Senate in Recess for Purposes of the Recess Appointment Clause?

This Note argues that courts should interpret the Constitution to allow the President to make recess appointments only during intersession recesses of the Senate. Part I chronicles the history of presidential recess appointments. This Part highlights the increasing frequency of, and questionable need for, intrasession recess appointments in the past twenty-five years. Part II examines the text of the Recess Appointments Clause and the intentions of the Framers regarding the scope of the clause and the appointment power in general. This Part argues that the text and the Framers’ intentions indicate that the President’s power to make recess appointments should be limited to intersession recesses. Part III focuses upon interpretations of the clause by actors in the political sphere, namely the Senate and presidential legal advisors. Although these actors are arguably entitled to some deference by the judicial branch, this Part argues that executive and legislative opinions issued over the years fail to undermine the textual analysis limiting the President’s recess appointment power to intersession recesses. Finally, Part IV contends that allowing the recess appointment power even during long intrasession recesses would not further the purposes of the clause. This Part reasons that Senate committees’ consideration of nominations during recesses ensures the continuance of the advice and consent process and that statutes provide an alternative means of filling vacancies in the executive branch. Such mechanisms highlight the diminished need for a clause to fill vacancies during recesses, and counsel against invoking the clause during intrasession recesses. This Note concludes that the purposes of the Recess Appointments Clause support the text in limiting the President’s recess appointment power to intersession recesses.