New Analysis: Recess Appointments Vital to Functioning Government

January 9, 2014

New York, NY – With government dysfunction at an all-time high, the Supreme Court will hear a case next week that could make things worse by effectively nullifying the president’s power to make recess appointments.

Recess appointments have been used thousands of times throughout our nation’s history, and by nearly every president, to ensure the government functions effectively, according to a new analysis from the Brennan Center for Justice at NYU School of Law.

The Court could dramatically reduce this power in National Labor Relations Board v. Noel Canning, which will be heard on January 13.

Key Facts:

  • Every president but William Henry Harrison, who died a month after taking office, used the recess appointment power.
  • If the Supreme Court reduces the recess appointment power, thousands of past appointments would have been illegal.
  • At least 14 presidents have collectively made at least 600 civilian recess appointments during the Senate’s annual sessions — appointments which would be illegal under a narrow reading of the recess appointment power.
  • Since 1981, there have been 329 recess appointments during annual Senate sessions, with Presidents Ronald Reagan and George W. Bush relying on them the most.
  • Several notable public officials were given recess appointments that would be illegal under a narrow interpretation, including Dwight Eisenhower as Major General of the U.S. Army (1943), Justice Thurgood Marshall to the Second Circuit Court of Appeals (1961), and Alan Greenspan as Federal Reserve Chair (1991).

“A robust recess appointment power has been a crucial tool in ensuring the government’s ability to function effectively,” said Counsel Alicia Bannon, co-author of the report. “If the Supreme Court rules against this power, important posts would remain unfilled for months at a time, adding to an already historic level of government dysfunction,” added co-author David Earley.

Case Background:

At issue in Noel Canning is the scope of the president’s power under the Constitution’s “Recess Appointments Clause,” which allows the president to make temporary executive and judicial appointments during Senate recesses, without Senate confirmation.

In January 2012, President Obama used his recess appointment power to fill three vacancies on the National Labor Relations Board. After the Board affirmed an order against the Noel Canning corporation, the company filed suit in the United States Court of Appeals for the D.C. Circuit, arguing the Senate was not in recess when the president made the recess appointments to the Board, and thus the appointments were unconstitutional and invalid. The D.C. Circuit agreed, holding that the recess appointment power is limited to recesses between sessions of Congress, not recesses during Congressional sessions, and that the power can only be used to fill vacancies that open during the recess.

Read the Brennan Center’s amicus brief in support of the National Labor Relations Board.