On March 4, 1789, the first U.S. Congress convened at New York City’s Federal Hall. It got off to a bit of a rocky start: Only 22 of the 81 members of the Senate and the House of Representatives made it to New York in time to attend the first day in session, and it took another month for enough congressmen to arrive to form a quorum, allowing voting to begin. The first session ran through September 29, at which point the congressmen left for a three-month recess.
It was during this first congressional recess that President George Washington made the country’s very first recess appointments. The U.S. Constitution provides that the Senate must approve presidential appointments. But at a time when cross-country travel by horse prevented senators from quickly convening, the framers of the Constitution decided to add a clause allowing the president to make temporary appointments during a congressional recess.
Recess appointments became controversial as modern travel and longer congressional sessions have eliminated some of the reasons that the framers created the exception in the first place. These appointments drew increased scrutiny in the 21st century, with the Supreme Court ruling on them for the first time in 2014.
The Origins and Role of Recess Appointments
The legal basis for recess appointments comes from Article II, Section 2 of the Constitution, which states: “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.” Recess appointments are temporary, and appointees must receive congressional approval in order to continue their role for more than one congressional session.
Methods of travel and communication in the 1780s limited how quickly senators could gather to approve appointments during recesses, which could last for several months at a time. This may explain why the framers do not seem to have debated recess appointments very much before including the presidential power in the Constitution. In the Federalist Papers, Alexander Hamilton called it “nothing more than a supplement…for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.”
Controversies Over Recess Appointments
The Senate has historically approved most recess appointments, but there have been some notable exceptions. In 1831, during a nine-month period in which Congress did not meet, Andrew Jackson appointed Martin Van Buren as ambassador to Great Britain. The Senate had previously rejected many of Jackson’s appointments, and when it began a new session, it rejected Buren’s nomination—this time with Jackson’s own vice president, John C. Calhoun, casting the deciding “no” vote (Jackson responded by dropping Calhoun as his running mate in his reelection and replacing him with Van Buren).
In the 1950s, President Dwight D. Eisenhower appointed three Supreme Court justices—Earl Warren, William J. Brennan and Potter Stewart—during congressional recesses. The Senate approved all three appointments when it was back in session. However, Eisenhower’s actions led the Senate Judiciary Committee to issue a report arguing that a president should only make recess appointments in unusual circumstances.
Even so, recess appointments remained relatively unchallenged until the 21st century.
Supreme Court Weighs In
Today, senators have access to faster communication and transportation systems that allow them to quickly notify each other and gather at the Capitol in Washington, D.C., should the need arise. The length of congressional recesses has also grown shorter, and it is no longer normal for the Senate to be out of session for half the year. Because of this, critics of recess appointments have questioned the appropriateness and relevancy of the process in modern politics.
In addition, recess appointments—as well as the definition of what counts as a “recess”—have become more politically charged. Since the mid-2000s, senators have tried to block presidents from making recess appointments by sending a senator to an empty chamber every three days during recesses to bang a gavel, thus carving up the period of time the Senate is technically in recess, reports The New York Times.
The Supreme Court has upheld this method of shortening recesses. In January 2012, in response to the Senate refusing to hold hearings on President Barack Obama’s nominations, Obama appointed three people to the National Labor Relations Board during a congressional recess.
In 2014, the Supreme Court upheld the legality of recess appointments in its ruling for National Labor Relations Board v. Noel Canning. However, the court ruled that Obama’s three appointments did not count as recess appointments because the recess in question lasted for fewer than 10 days.
During President Donald Trump’s first term, senators continued to use the same method to block recess appointments. In April 2020, Trump threatened to force Congress to adjourn if the Senate did not approve his nominations, so that he could make recess appointments. Following his election in November 2024, Trump declared his intention to make recess appointments when he takes office.
