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Wonkology: Recess Appointment

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August 12, 2014

Wonkology: Recess Appointment

noun

In the early days of the Republic, the Senate would often go into recess for extended periods of time. During these long breaks, early Presidents would appoint "officers of the United States" in the absence of otherwise constitutionally-required Senate approval, a power authorized under Article II, Section 2, Clause 3 of the Constitution. These appointments only last until the end of the next Congressional session.

King of the Hill

Prior to the 21st Century, the Senate would frequently go into recess for more than two weeks at a time, giving the President many opportunities to make recess appointments. This practice changed dramatically when the Democratic majority began to go into pro forma recess in 2007 following their takeover of the Senate in the 2006 mid-term elections. The Democrats would meet every three days during a scheduled recess without conducting official business in order to block President George W. Bush from making appointments, something Republicans had threatened to do under President Clinton but never did. When the Republicans regained the majority in the House of Representatives in 2011, they began using a provision in the Constitution requiring mutual consent of both bodies to go into recess in order to block recess appointments.

Tag, you’re it

Earlier this year, the Supreme Court ruled unanimously in National Labor Relations Board v. Noel Canning that President Obama had unconstitutionally appointed three members to the National Labor Relations Board while the Senate was in a pro forma recess. In the ruling, the Court provided some clarity by stating that the President can make appointments during recesses, provided that the recess be of sufficient length, or over 10 days.

Dodgeball

Your Senators and Representatives scattered from Washington last week, and their staffers have ditched their suits for more casual attire. Nevertheless, Congress will remain in pro forma session during the August recess, thus preventing President Obama from making further recess appointments, including new ambassadors to Russia and South Korea who have not yet been confirmed.

An Extra Bit of Wonkology for your August! Did you know that it is illegal for Congress to work during August? The Legislative Reorganization Act of 1970 made it illegal after a period of extremely long sessions in the 1960s.


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