Recess Appointments Amid Pro Forma Senate Sessions ( 2012 )

Recess Appointments Amid Pro Forma Senate Sessions
A twenty-day Senate recess may give rise to presidential authority to make recess ap-
pointments.
Congress’s provision for pro forma sessions during that twenty-day period does not have
the legal effect of interrupting the recess for purposes of the Recess Appointments
Clause.
In this context, the President has discretion to conclude that the Senate is unavailable to
perform its advise-and-consent function and may exercise his power to make recess
appointments.
January 6, 2012
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT *
On December 17, 2011, the Senate agreed by unanimous consent to
“adjourn and convene for pro forma sessions only, with no business
conducted,” every Tuesday and Friday between that date and January 23,
2012. 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2011). During that peri-
od, on January 3, 2012, the Senate convened one such pro forma session
to begin the second session of the 112th Congress and adjourned less than
a minute later under its prior agreement. 158 Cong. Rec. S1 (daily ed.
Jan. 3, 2012); see also U.S. Const. amend. XX, § 2. You asked whether
the President has authority under the Recess Appointments Clause, U.S.
Const. art. II, § 2, cl. 3, to make recess appointments during the period
between January 3 and January 23 notwithstanding the convening of
periodic pro forma sessions. We advised you that he does. This opinion
memorializes and elaborates on that advice.
This Office has consistently advised that “a recess during a session of
the Senate, at least if it is of sufficient length, can be a ‘Recess’ within the
meaning of the Recess Appointments Clause” during which the President
may exercise his power to fill vacant offices. Memorandum for Alberto R.
* Editor’s Note: The Supreme Court considered the questions addressed in this opinion
in NLRB v. Noel Canning, 573 U.S. 513 (2014), and held that the Recess Appointments
Clause empowers the President to fill vacancies during intrasession recesses “of substan-
tial length,” but that the Senate is in session for purposes of the Clause during a pro forma
session in which the Senate retains the capacity to conduct business under its rules. Id. at
527, 550. The Court therefore held that three appointments made by President Obama
during the period at issue in this opinion were invalid. Id. at 557.
15
36 Op. O.L.C. 15 (2012)
Gonzales, Counsel to the President, from Jack L. Goldsmith III, Assistant
Attorney General, Office of Legal Counsel, Re: Recess Appointments in
the Current Recess of the Senate at 1 (Feb. 20, 2004) (“Goldsmith Memo-
randum”). 1 Although the Senate will have held pro forma sessions regu-
larly from January 3 through January 23, in our judgment, those sessions
do not interrupt the intrasession recess in a manner that would preclude
the President from determining that the Senate remains unavailable
throughout to “‘receive communications from the President or participate
as a body in making appointments.’” Intrasession Recess Appointments,
13 Op. O.L.C. 271, 272 (1989) (quoting Executive Power—Recess Ap-
pointments, 33 Op. Att’y Gen. 20, 24 (1921) (“Daugherty Opinion”)).
Thus, the President has the authority under the Recess Appointments
Clause to make appointments during this period. The Senate could remove
the basis for the President’s exercise of his recess appointment authority
by remaining continuously in session and being available to receive and
act on nominations, but it cannot do so by providing for pro forma ses-
sions at which no business is to be conducted.
I.
Beginning in late 2007, and continuing into the 112th Congress, the
Senate has frequently conducted pro forma sessions during recesses
occurring within sessions of Congress. These pro forma sessions typically
last only a few seconds, and apparently require the presence of only one
Senator. 2 Senate orders adopted by unanimous consent provide in advance
1 “A recess between sine die adjournment of one session and the convening of the next
is also known as an intersession recess. A recess within a session is also known as an
intrasession recess.” Henry B. Hogue & Richard S. Beth, Cong. Research Serv., Efforts to
Prevent Recess Appointments Through Congressional Scheduling and Historical Recess
Appointments During Short Intervals Between Sessions 3 n.6 (2011). “The number of
days in a recess period is ordinarily calculated by counting the calendar days running
from the day after the recess begins and including the day the recess ends.” Goldsmith
Memorandum at 1.
2 See, e.g., 157 Cong. Rec. D1404 (daily ed. Dec. 30, 2011) (noting that day’s pro for-
ma session lasted from 11:00:02 until 11:00:34 a.m.); id. at D903 (daily ed. Aug. 12,
2011) (noting that day’s pro forma session lasted from 12:00:08 until 12:00:32 p.m.); 156
Cong. Rec. D1067 (daily ed. Oct. 26, 2010) (noting that day’s pro forma session lasted
from 12:00:04 until 12:00:31 p.m.); 154 Cong. Rec. D1257 (daily ed. Oct. 30, 2008)
(noting that day’s pro forma session lasted from 9:15:00 until 9:15:08 a.m.); id. at D665
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Recess Appointments Amid Pro Forma Senate Sessions
that there is to be “no business conducted” at such sessions. See, e.g., 157
Cong. Rec. S8783 (daily ed. Dec. 17, 2011); id. at S7876 (daily ed. Nov.
18, 2011); id. at S6891 (daily ed. Oct. 20, 2011); id. at S6009 (daily ed.
Sept. 26, 2011); id. at S5292 (daily ed. Aug. 2, 2011); id. at S3465 (daily
ed. May 26, 2011); 156 Cong. Rec. S7775 (daily ed. Sept. 29, 2010); 154
Cong. Rec. S10,958 (daily ed. Dec. 11, 2008); id. at S10,776 (daily ed.
Nov. 20, 2008); id. at S8077 (daily ed. Aug. 1, 2008); id. at S2194 (daily
ed. Mar. 13, 2008); id. at S1085 (daily ed. Feb. 14, 2008); 153 Cong. Rec.
S16,069 (daily ed. Dec. 19, 2007); id. at S14,661 (daily ed. Nov. 16,
2007); accord 154 Cong. Rec. S4849 (daily ed. May 22, 2008) (recess
order stating that “no action or debate” is to occur during pro forma ses-
sions). 3 The Senate Majority Leader has stated that such pro forma ses-
sions break a long recess into shorter adjournments, each of which might
ordinarily be deemed too short to be considered a “recess” within the
meaning of the Recess Appointments Clause, thus preventing the Presi-
dent from exercising his constitutional power to make recess appoint-
ments. See 154 Cong. Rec. S7558 (daily ed. July 28, 2008) (statement of
Sen. Reid); see also 153 Cong. Rec. S14609 (daily ed. Nov. 16, 2007)
(statement of Sen. Reid) (“[T]he Senate will be coming in for pro forma
sessions . . . to prevent recess appointments.”).
While this practice was initiated by Senate action, more recently the
Senate’s use of such sessions appears to have been forced by actions of
the House of Representatives. See generally Henry B. Hogue & Richard
S. Beth, Cong. Research Serv., Efforts to Prevent Recess Appointments
Through Congressional Scheduling and Historical Recess Appointments
During Short Intervals Between Sessions 5–8 (2011). On May 25, 2011,
twenty Senators noted the Senate’s use of pro forma sessions in 2007
and “urge[d] [the Speaker of the House] to refuse to pass any resolution
(daily ed. May 27, 2008) (noting that day’s pro forma session lasted from 9:15:02 until
9:15:31 a.m.).
3 We are aware of only two occasions in this period in which a Senate order did not
provide that no business would be conducted in pro forma sessions held during a recess.
On the first, the relevant order provided that there would be “no business conducted,
except with the concurrence of the two leaders,” 154 Cong. Rec. S10,504 (daily ed.
Oct. 2, 2008); on the second, the relevant order was silent, id. at S6336 (daily ed. June 27,
2008). It is unclear, however, whether the use of pro forma sessions on the latter occasion
was intended to prevent recess appointments, as only one pro forma session was sched-
uled during the ten-day recess. See id.
1736 Op. O.L.C. 15 (2012)
to allow the Senate to recess or adjourn for more than three days for the
remainder of the [P]resident’s term.” Press Release, Senator David
Vitter, Vitter, DeMint Urge House to Block Controversial Recess Ap-
pointments (May 25, 2011), http://vitter.senate.gov/public/index.cfm?
FuseAction=PressRoom.PressReleases. The next month, eighty Repre-
sentatives similarly requested that the Speaker, House Majority Leader,
and House Whip take “all appropriate measures . . . to prevent any and
all recess appointments by preventing the Senate from officially recess-
ing for the remainder of the 112th Congress.” Letter for John Boehner,
Speaker of the House, et al., from Jeff Landry, Member of Congress
(June 15, 2011), http://landry.house.gov/sites/landry.house.gov/files/
documents/Freshmen%20Recess%20Appointment%20Letter.pdf. Con-
sistent with these requests, “no concurrent resolution of adjournment
ha[s] been introduced in either chamber since May 12, 2011.” Henry B.
Hogue, Cong. Research Serv., RS21308, Recess Appointments: Fre-
quently Asked Questions 3 (rev. Dec. 12, 2011). And because the Con-
stitution provides that “[n]either House, during the Session of Con-
gress, shall, without the Consent of the other, adjourn for more than
three days,” U.S. Const. art. I, § 5, cl. 4, both Houses have convened
pro forma sessions during periods of extended absence.
Public statements by some Members of the Senate reveal that they do
not consider these pro forma sessions to interrupt a recess. See, e.g., 157
Cong. Rec. S6826 (daily ed. Oct. 20, 2011) (statement of Sen. Inhofe)
(referring to the upcoming “1-week recess”); id. at S5035 (daily ed. July
29, 2011) (statement of Sen. Thune) (calling on the Administration to
send trade agreements to Congress “before the August recess” even
though “[w]e are not going to be able to consider these agreements until
September”); id. at S4182 (daily ed. June 29, 2011) (statement of Sen.
Sessions) (“Now the Senate is scheduled to take a week off, to go into
recess to celebrate the Fourth of July[.]”); 156 Cong. Rec. at S8116–17
(daily ed. Nov. 19, 2010) (statement of Sen. Leahy) (referring to the
period when “the Senate recessed for the elections” as the “October re-
cess”); 154 Cong. Rec. S7984 (daily ed. Aug. 1, 2008) (statement of Sen.
Hatch) (referring to upcoming “5-week recess”); id. at S7999 (daily ed.
Aug. 1, 2008) (statement of Sen. Dodd) (noting that Senate would be in
“adjournment or recess until the first week in September”); id. at S7713
(daily ed. July 30, 2008) (statement of Sen. Cornyn) (referring to the
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Recess Appointments Amid Pro Forma Senate Sessions
upcoming “month-long recess”); see also id. at S2193 (daily ed. Mar. 13,
2008) (statement of Sen. Leahy) (referring to the upcoming “2-week
Easter recess”).
Likewise, the Senate as a body does not uniformly appear to consider
its recess broken by pre-set pro forma sessions. The Senate’s web page on
the sessions of Congress, which defines a recess as “a break in House or
Senate proceedings of three days or more, excluding Sundays,” treats such
a period of recess as unitary, rather than breaking it into three-day seg-
ments. See United States Senate, The Dates of Sessions of the Congress,
http://www.senate.gov/reference/Sessions/sessionDates.htm (last visited
ca. Jan. 2012). The Congressional Directory of the 112th Congress, pub-
lished by Congress, see 44 U.S.C. § 721(a), does the same. See 2011–
2012 Congressional Directory 538 n.2 (Joint Comm. on Printing, 112th
Cong., comp. 2011). More substantively, despite the pro forma sessions,
the Senate has taken special steps to provide for the appointment of con-
gressional personnel during longer recesses (including this one), indicat-
ing that the Senate recognizes that it is not in session during this period
for the purpose of making appointments under ordinary procedures. 4 And
when messages are received from the President during the recess, they are
not laid before the Senate and entered into the Congressional Record until
the Senate returns for a substantive session, even if pro forma sessions are
4 See, e.g., 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2011) (providing that “notwith-
standing the upcoming recess or adjournment of the Senate, the President of the Senate,
the President pro tempore, and the majority and minority leaders [are] authorized to make
appointments to commissions, committees, boards, conferences, or interparliamentary
conferences authorized by the law, by concurrent action of the two Houses, or by order of
the Senate”); id. at S7876 (daily ed. Nov. 18, 2011) (similar); id. at S5292 (daily ed. Aug.
2, 2011) (similar); id. at S3463 (daily ed. May 26, 2011) (similar); 156 Cong. Rec. S7775
(daily ed. Sept. 29, 2010) (similar); 154 Cong Rec. S10,958 (daily ed. Dec. 11, 2008)
(similar); id. at S10,776 (daily ed. Nov. 20, 2008) (similar); id. at S10,427 (daily ed. Oct.
2, 2008) (similar); id. at S8077 (daily ed. Aug. 1, 2008) (similar); id. at S6332 (daily ed.
June 27, 2008) (similar); id. at S4848 (daily ed. May 22, 2008) (similar); id. at S2190
(daily ed. Mar. 13, 2008) (similar); id. at S1085 (daily ed. Feb. 14, 2008) (similar); 153
Cong. Rec. S16,060 (daily ed. Dec. 19, 2007) (similar); id. at S14,655 (daily ed. Nov. 16,
2007) (similar). The Senate has taken similar steps before recesses that are not punctuated
by pro forma sessions. See, e.g., 156 Cong. Rec. S6974 (daily ed. Aug. 5, 2010) (provid-
ing for appointment authority before an intrasession recess expected to last for thirty-nine
days); 153 Cong. Rec. S10,991 (daily ed. Aug. 3, 2007) (same, recess of thirty-two days).
19
36 Op. O.L.C. 15 (2012)
convened in the meantime. 5 On the other hand, we have been informed
that at least during the August 2008 recess, the Senate Executive Clerk
did not return pending nominations when the Senate went into recess
pursuant to Senate Standing Rule XXXI, which provides for the return of
nominations that have not been acted upon when the Senate recesses “for
more than thirty days.” Senate Rule XXXI(6), Standing Rules of the
Senate, in Senate Manual, S. Doc. No. 112-1, at 58 (2011) (“Senate
Standing Rules”). This omission may reflect the Executive Clerk’s treat-
ment of that impending recess as a series of shorter adjournments rather
than a single thirty-eight-day recess.
II.
To address the President’s authority to make recess appointments dur-
ing a recess including pro forma sessions, we consider two distinct issues:
The first is whether the President has authority to make a recess appoint-
ment during the recess at issue here, an intrasession recess of twenty days.
We conclude that he does. The opinions of the Attorney General and this
Office, historical practice, and the limited judicial authority that exists all
provide strong support for that conclusion.
Thereafter, we consider whether the President is disabled from making
an appointment when the recess is punctuated by periodic pro forma
sessions at which Congress has declared in advance that no business is to
be conducted. Based primarily on the traditional understanding that the
Recess Appointments Clause is to be given a practical construction focus-
ing on the Senate’s ability to provide advice and consent to nominations,
we conclude that while Congress can prevent the President from making
any recess appointments by remaining continuously in session and availa-
ble to receive and act on nominations, it cannot do so by conducting pro
forma sessions during a recess. The question is a novel one, and the
5 See, e.g., 157 Cong. Rec. S7905 (daily ed. Nov. 28, 2011) (message from the Presi-
dent “received during adjournment of the Senate on November 21, 2011,” laid before the
Senate); id. at S7881 (daily ed. Nov. 25, 2011) (record of pro forma session with no
mention of receipt of presidential message); id. at S7879 (daily ed. Nov. 22, 2011)
(same); S6916 (daily ed. Oct. 31, 2011) (message from the President “received during
adjournment of the Senate on October 25, 2011,” laid before the Senate); id. at S6895
(daily ed. Oct. 27, 2011) (record of pro forma session with no mention of receipt of
presidential message).
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Recess Appointments Amid Pro Forma Senate Sessions
substantial arguments on each side create some litigation risk for such
appointments. We draw on the analysis developed by this Office when it
first considered the issue. See Memorandum to File, from John P. Elwood,
Deputy Assistant Attorney General, Office of Legal Counsel, Re: Lawful-
ness of Making Recess Appointment During Adjournment of the Senate
Notwithstanding Periodic “Pro Forma Sessions” (Jan. 9, 2009).
A.
The Recess Appointments Clause of the Constitution provides that
“[t]he 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.” U.S. Const. art. II, § 2, cl. 3. The
Department of Justice “has long interpreted the term ‘recess’ to include
intrasession recesses if they are of substantial length.” Intrasession Recess
Appointments, 13 Op. O.L.C. at 272; see also Goldsmith Memorandum at
1–2; Recess Appointments During an Intrasession Recess, 16 Op. O.L.C.
15, 15–16 (1992); Recess Appointments—Compensation (5 U.S.C. § 5503),
3 Op. O.L.C. 314, 316 (1979); Recess Appointments, 41 Op. Att’y Gen.
463, 468 (1960); Daugherty Opinion, 33 Op. Att’y Gen. at 21–22, 25.
Under a framework first articulated by Attorney General Daugherty in
1921, and subsequently reaffirmed and applied by several opinions of
the Attorney General and this Office, the “constitutional test for whether
a recess appointment is permissible is whether the adjournment of the
Senate is of such duration that the Senate could ‘not receive communica-
tions from the President or participate as a body in making appoint-
ments.’” Intrasession Recess Appointments, 13 Op. O.L.C. at 272 (quot-
ing Daugherty Opinion, 33 Op. Att’y Gen. at 24). 6 Although “the line of
6 In 1868, Attorney General Evarts approved the contemplated appointments of three
officials during a fifty-six-day intrasession recess of the Senate without remarking upon
the nature of the recess. See Case of District Attorney for Eastern District of Pennsylva-
nia, 12 Op. Att’y Gen. 469, 469–70 (1868) (observing that the office “is now vacant
during the recess of the Senate” and opining that “it is competent for the President to
grant a commission”); see also Case of the Collectorship of New Orleans, 12 Op. Att’y
Gen. 449 (1868); Case of the Collectorship of Customs for Alaska, 12 Op. Att’y Gen. 455
(1868). It is possible that Attorney General Evarts was not aware that the Senate had
merely adjourned to a date certain: he referred in each opinion to the “late session” of the
Senate. See, e.g., 12 Op. Att’y Gen. at 451. Attorney General Knox, too, was apparently
21
36 Op. O.L.C. 15 (2012)
demarcation can not be accurately drawn” in determining whether an
intrasession recess is of sufficient length to permit the President to make
a recess appointment, “the President is necessarily vested with a large,
although not unlimited, discretion to determine when there is a real and
genuine recess making it impossible for him to receive the advice and
consent of the Senate.” Daugherty Opinion, 33 Op. Att’y Gen. at 25; see
also id. (“Every presumption is to be indulged in favor of the validity of
whatever action [the President] may take.”); The Constitutional Separa-
tion of Powers Between the President and Congress, 20 Op. O.L.C. 124,
161 (1996) (“Dellinger Opinion”) (“[T]he President has discretion to
make a good-faith determination of whether a given recess is adequate
to bring the Clause into play.”). “Ultimately, resolution of the question
whether an adjournment is of sufficient duration to justify recess ap-
pointments requires the application of judgment to particular facts.”
Intrasession Recess Appointments, 13 Op. O.L.C. at 273.
We have little doubt that a twenty-day recess may give rise to presiden-
tial authority to make recess appointments. Attorneys General and this
Office have repeatedly affirmed the President’s authority to make recess
appointments during intrasession recesses of similar or shorter length.
See, e.g., Goldsmith Memorandum at 2–3 (recognizing President’s author-
ity to make a recess appointment during an intrasession recess of eleven
days); Recess Appointments During an Intrasession Recess, 16 Op.
O.L.C. at 15–16 (same, eighteen days); Intrasession Recess Appointments,
13 Op. O.L.C. at 272–73 (thirty-three days); Recess Appointments, 41 Op.
Att’y Gen. at 464–65 (thirty-six days); Daugherty Opinion, 33 Op. Att’y
Gen. at 25 (twenty-eight days). 7
unaware of this fact when he cited one of these opinions to support his conclusion that it
is only the “period following the final adjournment for the session which is the recess
during which the President has power to fill vacancies” and remarked that “[t]he opinions
of Mr. Wirt . . . and all the other opinions on this subject relate only to appointments
during the recess of the Senate between two sessions of Congress.” Appointments of
Officers—Holiday Recess, 23 Op. Att’y Gen. 599, 601–02 (1901). The Daugherty Opinion
reversed Attorney General Knox’s conclusion about appointments in intrasession recess-
es.
7 In 1985, the Office “cautioned against a recess appointment during [what was mis-
takenly believed to be] an 18-day intrasession recess,” Intrasession Recess Appointments,
13 Op. O.L.C. at 273 n.2 (citing Memorandum for the Files from Herman Marcuse,
Attorney-Adviser, Office of Legal Counsel, Re: Recess Appointments to the Export
22
Recess Appointments Amid Pro Forma Senate Sessions
The recess appointment practice of past Presidents confirms the views
expressed in these opinions. See Am. Ins. Ass’n v. Garamendi, 539 U.S.
396, 414 (2003) (relying on the accumulated “historical gloss” to discern
the scope of presidential authority where “the source of the President’s
power to act . . . does not enjoy any textual detail”); see also Evans v.
Stephens, 387 F.3d 1220, 1225–26 (11th Cir. 2004) (en banc) (relying in
part on historical practice to reject “the argument that the recess appoint-
ment power may only be used in an intersession recess”). Intrasession
recesses were rare in the early years of the Republic; when they occurred,
they were brief. See Congressional Directory 522–25 (listing five in-
trasession recesses before the Civil War, ranging from five to twelve days
in length). But as intrasession recesses became common, so too did in-
trasession recess appointments. President Johnson is believed to have
made the first intrasession recess appointments in 1867. Henry B. Hogue,
The Law: Recess Appointments to Article III Courts, 34 Presidential Stud.
Q. 656, 666 (2004). 8 “The length of the recess may have triggered the
appointments, because none of the intrasession recesses taken by the
Senate until that time had lasted more than 15 days.” Id. Presidents Har-
ding and Coolidge each made intrasession recess appointments in the
1920s (during recesses of twenty-eight and fourteen days, respectively),
see 61 Cong. Rec. 5646 (1921) (recess from Aug. 24, 1921, until Sept. 21,
1921); id. at 5737 (recess appointment to the Register of the Land Office
made on Aug. 30, 1921); 69 Cong. Rec. 910 (1927) (recess from Dec. 21,
1927, until Jan. 4, 1928); Declaration of Ronald R. Geisler, Chief Clerk of
the Executive Clerk’s Office, Exhibit B, Bowers v. Moffett, Civ. Action
No. 82-0195 (D.D.C. Jan. 22, 1982) (recess appointment to the Interstate
Import Bank (Jan. 28, 1985) (“Marcuse Memorandum”)). This reluctance was attributable
in part to factors other than the length of the recess, and we did “not say that [the ap-
pointments] would be constitutionally invalid as a matter of law,” Marcuse Memorandum
at 1–3. Regardless, the caution was not heeded, and the appointments were made in a
fourteen-day intrasession recess. Id. at 4.
8 As an analyst from the Congressional Research Service has explained, “it is virtually
impossible” to identify all recess appointments before 1965, because before that date
“recess appointments were recorded in a haphazard fashion.” Memorandum for Senate
Committee on Banking, Housing and Urban Affairs, from Rogelio Garcia, Analyst in
American National Government, Government Division, Congressional Research Service,
Library of Congress, Re: Number of Recess Appointments, by Administration, From 1933
to 1984, at 1 (Mar. 13, 1985).
23
36 Op. O.L.C. 15 (2012)
Commerce Commission made January 3, 1928), and “[b]eginning in 1943,
presidents started to routinely make recess appointments during long
intrasession recesses.” Hogue, Recess Appointments, 34 Presidential Stud.
Q. at 666; see also 139 Cong. Rec. 15,273 (1993) (compilation of in-
trasession recess appointments from 1970 to 1993). The last five Presi-
dents have all made appointments during intrasession recesses of fourteen
days or fewer. 9
There is significant (albeit not uniform) evidence that the Executive
Branch’s view that recess appointments during intrasession recesses are
constitutional has been accepted by Congress and its officers. Most rele-
vant, in our view, is the Pay Act, 5 U.S.C. § 5503 (2006), which sets out
the circumstances in which a recess appointee may be paid a salary from
the Treasury. The Attorney General has long taken the position that the
Act constitutes congressional acquiescence to recess appointments under
circumstances where the Act would permit payment. See Recess Appoint-
ments, 41 Op. Att’y Gen. at 466. In 1948, the Comptroller General con-
sidered whether the Act permitted the payment of officials appointed
during an intrasession recess. Appointments—Recess Appointments, 28
Comp. Gen. 30 (1948). After acknowledging the “accepted view” that an
intrasession recess “is a recess during which an appointment may properly
be made,” the Comptroller General concluded that the Act was intended
to permit payment to all who are appointed “during periods when the
9 For example, using the method of counting explained above, see supra note 1, Presi-
dent Obama made three recess appointments during a twelve-day recess; President George
W. Bush made twenty-one appointments across several eleven-day recesses, four ap-
pointments during a twelve-day recess, and four appointments during a fourteen-day
recess; President Clinton made one recess appointment during a ten-day recess, another
appointment during an eleven-day recess, and seventeen appointments across several
twelve-day recesses; President George H.W. Bush made fourteen appointments during a
thirteen-day recess; and President Reagan made two appointments during a fourteen-day
recess. See Press Release, President Obama Announces Recess Appointments to Key
Administration Positions (July 7, 2010), http://www.whitehouse.gov/the-press-office/
president-obama-announces-recess-appointments-key-administration-positions-0; Henry
B. Hogue & Maureen Bearden, Cong. Research Serv., RL33310, Recess Appointments
Made by President George W. Bush, January 20, 2001–October 31, 2008, at 9–10 (2008);
Rogelio Garcia, Cong. Research Serv., RL30821, Recess Appointments Made by Presi-
dent Clinton 9 (2001); Rogelio Garcia, Cong. Research Serv., Recess Appointments Made
by President George Bush 3 (1996); Rogelio Garcia, Cong. Research Serv., Recess
Appointments Made by President Reagan 8 (1988).
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Recess Appointments Amid Pro Forma Senate Sessions
Senate is not actually sitting and is not available to give its advice and
consent in respect to the appointment, irrespective of whether the recess
of the Senate is attributable to a final adjournment sine die or to an ad-
journment to a specified date.” Id. at 34, 37. “Considering that the Comp-
troller General is an officer in the legislative branch, and charged with the
protection of the fiscal prerogatives of the Congress, his full concurrence
in the position taken by the Attorney General . . . is of signal signifi-
cance,” Recess Appointments, 41 Op. Att’y Gen. at 469, and in the more
than sixty years since the opinion was issued, Congress has not amended
the statute to compel a different result. 10
While there is little judicial precedent addressing the President’s au-
thority to make intrasession recess appointments, what decisions there are
uniformly conclude that the President does have such authority. In the
only federal court of appeals decision squarely on point, the en banc
Eleventh Circuit upheld the recess appointment of a judge made during an
eleven-day intrasession recess. See Evans, 387 F.3d at 1224–26 (conclud-
ing “Recess of the Senate” as used in the Recess Appointments Clause
includes intrasession recesses and declining to set a lower limit on their
length). But see id. at 1228 n.2 (“Although I would not reach this ques-
10 Certain language in an 1863 report of the Senate Judiciary Committee could be read
to suggest that the Committee believed that recess appointments could be made only
during intersession recesses. See S. Rep. No. 37-80, at 3 (1863) (“It cannot, we think, be
disputed that the period of time designated in the clause as ‘the recess of the Senate,’
includes the space beginning with the indivisible point of time which next follows that at
which it adjourned, and ending with that which next precedes the moment of the com-
mencement of their next session.”). But the question addressed by the Committee in 1863
related to timing of the occurrence of the vacancy, not the nature of the recess during
which the vacancy occurred. Moreover, a subsequent report by the Committee defined a
recess functionally in terms that have since been adopted by the Attorney General and this
Office as setting forth the test for determining when an intrasession recess is of sufficient
length to give rise to the President’s power under the Recess Appointments Clause. See
S. Rep. No. 58-4389, at 2 (1905) (defining a recess as “the period of time . . . when,
because of its absence, [the Senate] can not receive communications from the President or
participate as a body in making appointments”); see also infra pp. 32–33.
A draft legal brief prepared, but never filed, by the Senate Legal Counsel in 1993 took
the position that “the text and purpose of the Recess Appointments Clause both demon-
strate that the recess power is limited to Congress’ annual recess between sessions.” 139
Cong. Rec. 15,267, 15,268 (1993). Because a resolution directing the Counsel to appear in
the litigation was never offered, however, it is unclear whether the views expressed in the
brief garnered the support of a majority of the Senate.
25
36 Op. O.L.C. 15 (2012)
tion, the text of the Constitution as well as the weight of the historical
record strongly suggest that the Founders meant to denote only inter-
session recesses.” (Barkett, J., dissenting)). Lower courts, too, have rec-
ognized the President’s power to make intrasession recess appointments.
See Nippon Steel Corp. v. Int’l Trade Comm’n, 239 F. Supp. 2d 1367,
1374 n.13 (Ct. Int’l Trade 2002) (“The long history of the practice (since
at least 1867) without serious objection by the Senate . . . demonstrates
the legitimacy of these appointments.”); Gould v. United States, 19 Ct. Cl.
593, 595–96 (1884) (“We have no doubt that a vacancy occurring while
the Senate was thus temporarily adjourned . . . could be and was legally
filled by the appointment of the President alone.” (dictum)). The Supreme
Court, however, has never decided the issue. 11
Due to this limited judicial authority, we cannot predict with certainty
how courts will react to challenges of appointments made during intrases-
sion recesses, particularly short ones. 12 If an official appointed during the
current recess takes action that gives rise to a justiciable claim, litigants
might challenge the appointment on the ground that the Constitution’s
reference to “the Recess of the Senate” contemplates only the recess at the
end of a session. That argument and the Department of Justice’s response
11 Justice Stevens filed a statement respecting the denial of certiorari in Evans express-
ing his view that the “case . . . raises significant constitutional questions regarding the
President’s intrasession appointment” of a circuit judge and that “it would be a mistake to
assume that our disposition of this petition constitutes a decision on the merits of whether
the President has the constitutional authority to fill future Article III vacancies, such as
vacancies on this Court, with appointments made absent consent of the Senate during
short intrasession ‘recesses.’” Evans v. Stephens, 544 U.S. 942, 942–43 (2005) (Stevens,
J., respecting denial of certiorari). It is unclear whether the Justice’s concerns related
specifically to recess appointments of Article III judges or extended to executive branch
appointments.
12 Scholarly opinion is divided on the proper interpretation of the Recess Appoint-
ments Clause, although advocates for a more limited recess appointment power recognize
that their view has not prevailed. Compare Edward A. Hartnett, Recess Appointments of
Article III Judges: Three Constitutional Questions, 26 Cardozo L. Rev. 377, 424 (2005)
(“[T]he recess appointment power is best understood as available during both intersession
and intrasession Senate recesses of more than three days.”), with Michael B. Rappaport,
The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487, 1487
(2005) (arguing that “the Constitution permits recess appointments only during an in-
tersession recess,” but acknowledging that “[t]he prevailing interpretation . . . allows the
President to makes recess appointments . . . during intrasession recesses of ten days and
perhaps of even shorter duration”).
26
Recess Appointments Amid Pro Forma Senate Sessions
have been discussed at length during litigation over a judicial recess
appointment. See, e.g., Brief for the Intervenor United States, Stephens,
387 F.3d 1220 (No. 02-16424); Response Brief of Plaintiffs-Appellees
and United States Senator Edward M. Kennedy as Amicus Curiae Sup-
porting Plaintiffs-Appellees, Stephens, 387 F.3d 1220 (No. 02-16424); see
also supra note 11.
We conclude that the President’s authority to make recess appointments
extends to an intrasession recess of twenty days.
B.
The second question we consider is whether Congress can prevent the
President from making appointments during a recess by providing for pro
forma sessions at which no business is to be conducted, where those pro
forma sessions are intended to divide a longer recess into a series of
shorter adjournments, each arguably too brief to support the President’s
recess appointment authority. We believe that Congress’s provision for
pro forma sessions of this sort does not have the legal effect of interrupt-
ing the recess of the Senate for purposes of the Recess Appointments
Clause and that the President may properly conclude that the Senate is
unavailable for the overall duration of the recess. 13
13 Because we conclude that pro forma sessions do not have this effect, we need not
decide whether the President could make a recess appointment during a three-day
intrasession recess. This Office has not formally concluded that there is a lower limit to
the duration of a recess within which the President can make a recess appointment.
Attorney General Daugherty suggested in dictum in his 1921 opinion that “an adjourn-
ment of 5 or even 10 days [could not] be said to constitute the recess intended by the
Constitution,” 33 Op. Att’y Gen. at 25. As a result, “[t]his Office has generally advised
that the President not make recess appointments, if possible, when the break in continuity
of the Senate is very brief,” The Pocket Veto: Historical Practice and Judicial Precedent,
6 Op. O.L.C. 134, 149 (1982); see, e.g., Recess Appointments—Compensation (5 U.S.C.
§ 5503), 3 Op. O.L.C. 314, 315–16 (1979) (describing informal advice against making
recess appointments during a six-day intrasession recess in 1970). Notwithstanding
Attorney General Daugherty’s caution, we advised in 1996 that “recess appointments
during [a] 10-day intrasession recess would be constitutionally defensible,” although they
would “pose significant litigation risks.” Memorandum for John M. Quinn, Counsel to the
President, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel,
Re: Recess Appointments (May 29, 1996). And both this Office and the Department of
Justice in litigation have recognized the argument that “the three days set by the Constitu-
tion as the time during which one House may adjourn without the consent of the other,
27
36 Op. O.L.C. 15 (2012)
1.
The Appointments Clause of the Constitution provides that the Presi-
dent “shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint Ambassadors, other public Ministers and Consuls,
Judges of the supreme Court, and all other Officers of the United States.”
U.S. Const. art. II, § 2, cl. 2. The Recess Appointments Clause immediate-
ly follows and confers on the President the “Power to fill up all Vacancies
that may happen during the Recess of the Senate, by granting Commis-
sions which shall expire at the End of their next Session.” Id. art. II, § 2,
cl. 3. The Clause was adopted at the Constitutional Convention without
debate. See 2 The Records of the Federal Convention of 1787, at 533, 540
(Max Farrand ed., rev. ed. 1966). 14 Alexander Hamilton described the
Clause in The Federalist as providing a “supplement” to the President’s
appointment power, establishing an “auxiliary method of appointment, in
cases to which the general method was inadequate.” The Federalist No.
U.S. Const. art. I, § 5, cl. 4, is also the length of time amounting to a ‘Recess’ under the
Recess Appointments Clause.” Goldsmith Memorandum at 3; Memorandum for John W.
Dean III, Counsel to the President, from Leon Ulman, Deputy Assistant Attorney General,
Office of Legal Counsel, Re: Recess Appointments at 3–4 (Dec. 3, 1971); Brief for the
United States in Opposition at 11, Evans v. Stephens, 544 U.S. 942 (2005) (No. 04-828)
(“[T]he Recess Appointments Clause by its terms encompasses all vacancies and all
recesses (with the single arguable exception of de minimis breaks of three days or less[.]”
(citing U.S. Const. art. I, § 5, cl. 4)); infra pp. 47–48; see also Hartnett, 26 Cardozo L.
Rev. at 424 (“[T]he recess appointment power is best understood as available during both
intersession and intrasession Senate recesses of more than three days.”). But see Brief for
the United States at 14–18, Mackie v. Clinton, Civ. Action No. 93-0032-LFO (D.D.C.
1993) (arguing that “there is no lower time limit that a recess must meet to trigger the
recess appointment power” (capitalization omitted)).
14 The Clause, which was proposed by a North Carolina delegate, is generally consid-
ered to have been based on a similar provision then in the North Carolina Constitution.
See 2 David K. Watson, The Constitution of the United States 988 (1910) (“The [Recess
Appointments Clause] was doubtless taken from the Constitution of North Carolina,
which contained a similar clause.” (footnote omitted)); Thomas A. Curtis, Note, Recess
Appointments to Article III Courts: The Use of Historical Practice in Constitutional
Interpretation, 84 Colum. L. Rev. 1758, 1770 n.71 (1984) (noting that the provision was
proposed by a delegate from North Carolina; that the language tracks that of the North
Carolina provision; and that the federal power is similar in scope to the power in North
Carolina’s Constitution at that time). Because the North Carolina legislature was then
generally responsible for appointments, the executive could make appointments only
when the legislature was not in session to do so.
28
Recess Appointments Amid Pro Forma Senate Sessions
67, at 409 (Clinton Rossiter ed., 1961). The Clause was necessary because
“it would have been improper to oblige [the Senate] to be continually in
session for the appointment of officers,” and it “might be necessary for
the public service to fill [vacancies] without delay.” Id. at 410.
Other contemporaneous writings likewise emphasize that the recess
appointment power is required to address situations in which the Senate is
unable to provide advice and consent on appointments. See 4 The Debates
in the Several State Conventions on the Adoption of the Federal Constitu-
tion as Recommended by the General Convention at Philadelphia in 1787,
at 135–36 (Jonathan Elliott ed., 2d ed. 1836) (“Elliott’s Debates”) (state-
ment of Archibald Maclaine at North Carolina ratification convention)
(July 28, 1788) (“Congress are not to be sitting at all times; they will only
sit from time to time, as the public business may render it necessary.
Therefore the executive ought to make temporary appointments, as well as
receive ambassadors and other public ministers. This power can be vested
nowhere but in the executive, because he is perpetually acting for the
public; for, though the Senate is to advise him in the appointment of
officers, &c., yet, during the recess, the President must do this business,
or else it will be neglected; and such neglect may occasion public incon-
veniences.”); cf. Letters of Cato IV, reprinted in 2 The Complete Anti-
Federalist 114 (Herbert J. Storing ed., 1981) (“Though the president,
during the sitting of the legislature, is assisted by the senate, yet he is
without a constitutional council in their recess . . . .”). 15 Thus, from the
days of the Founding, the Recess Appointments Clause has been consid-
ered implicated when the Senate is not “in session for the appointment of
officers.” The Federalist No. 67, at 410.
Nineteenth-century sources reflect this understanding. Justice Story
framed the issue in terms of the Senate’s ability to review nominations:
15 See also 2 Elliott’s Debates 513 (statement of James Wilson at Pennsylvania ratifica-
tion convention) (“[T]here is only left the power of concurring in the appointment of
officers; but care is taken, in this Constitution, that this branch of business may be done
without [the Senate’s] presence”); id. at 534 (statement of Thomas M’Kean) (Dec. 11,
1787) (“Nor need the Senate be under any necessity of sitting constantly, as has been
alleged; for there is an express provision made to enable the President to fill up all
vacancies that may happen during their recess[.]”); 3 Elliott’s Debates 409–10 (statement
of James Madison at the Virginia convention) (“There will not be occasion for the contin-
ual residence of the senators at the seat of government. . . . It is observed that the Presi-
dent, when vacancies happen during the recess of the Senate, may fill them till it meets.”).
29
36 Op. O.L.C. 15 (2012)
“There was but one of two courses to be adopted [at the Founding]; either,
that the senate should be perpetually in session, in order to provide for the
appointment of officers; or, that the president should be authorized to
make temporary appointments during the recess, which should expire,
when the senate should have had an opportunity to act on the subject.”
3 Joseph Story, Commentaries on the Constitution of the United States
§ 1551, at 410 (1833); id. § 1552, at 411 (discussing renomination when
“the senate is assembled”). And as early as the Monroe Administration,
the Executive Branch’s analysis of the Clause had begun to focus on the
availability of the Senate to be consulted on nominations. See, e.g., Ex-
ecutive Authority to Fill Vacancies, 1 Op. Att’y Gen. 631, 633 (1823)
(“[A]ll vacancies which . . . happen to exist at a time when the Senate
cannot be consulted as to filling them, may be temporarily filled by the
President[.]”) (emphasis added); Power of President to Fill Vacancies,
3 Op. Att’y Gen. 673, 676 (1841) (“[T]he convention very wisely provid-
ed against the possibility of such evils [i.e., “interregna in the executive
powers”] by enabling and requiring the President to keep full every office
of the government during a recess of the Senate, when his advisers could
not be consulted [.]”) (emphasis added); Power of President to Appoint to
Office during Recess of Senate, 4 Op. Att’y Gen. 523, 526 (1846) (“[T]he
vacancy happened at a time, and continues now to exist, when the Presi-
dent cannot obtain the advice and consent of his constitutional advis-
ers. . . . [T]his vacancy happening from the inaction of the Senate on the
nomination made[] is within the meaning of the [Recess Appointments
Clause], and may be filled by an Executive Appointment.” (emphasis
added)).
Opinions of the Attorney General have construed the Clause in order to
fulfill its purpose that there be an uninterrupted power to fill federal
offices. Thus, Attorney General Wirt advised in 1823 that “whensoever a
vacancy shall exist which the public interests require to be immediately
filled, and in filling which, the advice and consent of the Senate cannot be
immediately asked, because of their recess, the President shall have the
power of filling it by an appointment” because “[t]he substantial purpose
of the constitution was to keep these offices filled; and powers adequate
to this purpose were intended to be conveyed.” Executive Authority to Fill
Vacancies, 1 Op. Att’y Gen. at 632; see also Power of President to Fill
Vacancies, 3 Op. Att’y Gen. at 675 (affirming the President’s power to
30
Recess Appointments Amid Pro Forma Senate Sessions
make a second recess appointment after the Senate failed to act on a
nomination during the term of the first appointment because “the Presi-
dent, charged with the high duty of giving full effect to the law, must have
a power like its own existence—perpetual”); President’s Power to Fill
Vacancies in Recess of the Senate, 12 Op. Att’y Gen. 32, 38 (1866) (same,
because “as to the executive power, it is always to be in action, or in
capacity for action; and . . . to meet this necessity, there is a provision . . .
against vacancies in all the subordinate offices, and that at all times there
is a power to fill such vacancies”). 16
Subsequent Attorneys General and, later, this Office have continued to
place central importance on the Senate’s availability to give advice and
consent. In his seminal opinion concluding that a significant intrasession
adjournment is a “recess” in which recess appointments can be made,
Attorney General Daugherty focused on this point: “Regardless of wheth-
er the Senate has adjourned or recessed, the real question . . . is whether in
a practical sense the Senate is in session so that its advice and consent
can be obtained.” Daugherty Opinion, 33 Op. Att’y Gen. at 21–22 (sec-
ond emphasis added); see also id. at 25 (“Is the Senate absent so that it
can not receive communications from the President or participate as a
body in making appointments?”). Thus, in determining whether an intra-
session adjournment constitutes a recess in the constitutional sense, the
touchstone is “its practical effect: viz., whether or not the Senate is capa-
ble of exercising its constitutional function of advising and consenting to
executive nominations.” Recess Appointments, 41 Op. Att’y Gen. at 467
(emphasis added); accord Intrasession Recess Appointments, 13 Op.
16 Indeed, in construing the phrase “happen during the Recess” in the Recess Ap-
pointments Clause to mean “happen to exist” rather than originate in the recess, Attorney
General Wirt identified two possibilities: one was “most accordant with the letter of the
constitution; the second, most accordant with its reason and spirit.” Executive Authority
to Fill Vacancies, 1 Op. Att’y Gen. at 632. He chose the “construction of the constitution
which is compatible with its spirit, reason, and purpose.” Id. at 633. The courts have
subsequently endorsed the construction adopted by Wirt. See, e.g., Evans, 387 F.3d at
1226–27; United States v. Woodley, 751 F.2d 1008, 1012–13 (9th Cir. 1985) (en banc);
United States v. Allocco, 305 F.2d 704, 710 –14 (2d Cir. 1962); In re Farrow, 3 F. 112,
115–16 (N.D. Ga. 1880). But see Schenck v. Peay, 21 F. Cas. 672, 674 –75 (E.D. Ark.
1869) (finding recess appointment unlawful where the vacancy “existed, but did not
happen, during the recess of the senate”); In re District Attorney of United States,
7 F. Cas. 731, 734 –38 (E.D. Pa. 1868) (casting doubt on such an appointment).
31
36 Op. O.L.C. 15 (2012)
O.L.C. at 272. That understanding has been embraced by some prominent
commentators as well. See Louis Fisher, Constitutional Conflicts between
Congress and the President 38 (5th ed. 2007) (“A temporary recess of the
Senate, ‘protracted enough to prevent that body from performing its
functions of advising and consenting to executive nominations,’ permits
the President to make recess appointments.” (quoting Recess Appoint-
ments, 41 Op. Att’y Gen. at 466)).
Significantly, a century ago, the Senate Judiciary Committee adopted a
functional understanding of the term “recess” that focuses on the Senate’s
ability to conduct business. In rejecting the theory that President Theodore
Roosevelt could make recess appointments during a brief “constructive
recess” between two sessions of Congress, the Committee wrote of the
Recess Appointments Clause:
It was evidently intended by the framers of the Constitution that [the
word “recess”] should mean something real, not something imagi-
nary; something actual, not something fictitious. They used the word
as the mass of mankind then understood it and now understand it. It
means, in our judgment, . . . the period of time when the Senate is
not sitting in regular or extraordinary session as a branch of the
Congress, or in extraordinary session for the discharge of executive
functions; when its members owe no duty of attendance; when its
Chamber is empty; when, because of its absence, it can not receive
communications from the President or participate as a body in mak-
ing appointments. . . . Its sole purpose was to render it certain that at
all times there should be, whether the Senate was in session or not,
an officer for every office, entitled to discharge the duties thereof.
S. Rep. No. 58-4389, at 2 (1905) (second emphasis added); see also
Daugherty Opinion, 33 Op. Att’y Gen. at 24 (noting that this report was
“most significant of all” authorities in supporting the conclusion that a
substantial intrasession adjournment was a constitutional “recess”). The
Senate continues to cite that report as an authoritative source “on what
constitutes a ‘Recess of the Senate.’” Riddick’s Senate Procedure 947 &
n.46 (1992), http://www.gpo.gov/fdsys/pkg/GPO-RIDDICK-1992/pdf/
GPO-RIDDICK-1992-88.pdf (citing report). The Comptroller General
attributed a similar understanding to the entire Congress when he opined
that the “primary purpose” of the Pay Act was
32
Recess Appointments Amid Pro Forma Senate Sessions
to relieve “recess appointees” of the burden of serving without com-
pensation during periods when the Senate is not actually sitting and
is not available to give its advice and consent in respect to the ap-
pointment, irrespective of whether the recess of the Senate is at-
tributable to a final adjournment sine die or to an adjournment to a
specified date.
Appointments—Recess Appointments, 28 Comp. Gen. at 37 (emphasis
added).
2.
Guided by these principles, we conclude that the President may deter-
mine that pro forma sessions at which no business is to be conducted do
not interrupt a Senate recess for purposes of the Recess Appointments
Clause. Our conclusion rests on three considerations.
First, both the Framers’ original understanding of the Recess Appoint-
ments Clause and the longstanding views of the Executive and Legislative
Branches support the conclusion that the President may make recess
appointments when he determines that, as a practical matter, the Senate is
not available to give advice and consent to executive nominations. The
Recess Appointments Clause was adopted to allow the President to fill
offices when the Senate was not “in session for the appointment of offic-
ers.” The Federalist No. 67, at 410 (Alexander Hamilton). And, from the
early days of the Republic, the Executive has taken the position that “all
vacancies which . . . happen to exist at a time when the Senate cannot be
consulted as to filling them, may be temporarily filled by the President.”
Executive Authority to Fill Vacancies, 1 Op. Att’y Gen. at 633. Likewise,
in 1905, the Senate Judiciary Committee defined “recess” as used in the
Clause to be the period of time when the Senate cannot “participate as a
body in making appointments.” S. Rep. No. 58-4389, at 2.
We do not believe that the convening of periodic pro forma sessions
precludes the President from determining that the Senate is unavailable
during an intrasession recess otherwise long enough to support the Presi-
dent’s recess appointment authority. During the last three Congresses,
such sessions ordinarily have lasted only a few seconds. See, e.g., 157
Cong. Rec. D1404 (daily ed. Dec. 30, 2011) (noting that day’s pro forma
session lasted from 11:00:02 until 11:00:34 a.m.); see also supra note 2.
33
36 Op. O.L.C. 15 (2012)
Records of the sessions typically do not disclose the presence of any
Senator other than the single convening member. See, e.g., 157 Cong.
Rec. S8793 (daily ed. Dec. 30, 2011) (reflecting the presence of only
Senator Reed). And importantly, the pertinent Senate order states in
advance that there is to be “no business conducted” during the ensuing
sessions. See, e.g., 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2011); see
also supra pp. 16–17. 17 The purpose of these sessions avowedly is not to
conduct business; instead, either the Senate has intended to prevent the
President from making recess appointments during its absence or the
House has intended to require the Senate to remain in session (toward the
same end). See supra pp. 17–18; see also Henry B. Hogue, Cong. Re-
search Serv., RS21308, Recess Appointments: Frequently Asked Ques-
tions 3 (rev. Mar. 2008) (noting use of such sessions “for the stated pur-
pose of preventing [recess] appointments”).
Under these circumstances, the President could properly consider the
pertinent intrasession recess period to be one during which the Senate is
not genuinely “capable of exercising its constitutional function of advis-
ing and consenting to executive nominations,” Recess Appointments, 41
Op. Att’y Gen. at 467; see Dellinger Opinion, 20 Op. O.L.C. at 161 (not-
ing the President’s “discretion to make a good-faith determination of
whether a given recess is adequate to bring the Clause into play”); Daugh-
17 The Senate’s rules would also prevent it from acting on nominations or transacting
other legislative business during such sessions if, as expected, only a few Senators are
present. Under those rules, a quorum consists of “a majority of the Senators duly chosen
and sworn.” Senate Rule VI(1), Senate Standing Rules at 5. Whenever it is determined
that “a quorum is not present, a majority of the Senators present may direct the Sergeant
at Arms to request, and, when necessary, to compel the attendance of the absent Sena-
tors, which order shall be determined without debate; and pending its execution, and
until a quorum shall be present, no debate nor motion, except to adjourn, or to recess
pursuant to a previous order entered by unanimous consent, shall be in order.” Senate
Rule VI(4), id. at 5–6; see also Riddick’s Senate Procedure at 1046 (“No debate nor
business can be transacted in the absence of a quorum[.]”). We recognize that, as a
practical matter, neither the scheduling order nor the quorum requirement will always
prevent the Senate from acting without a quorum through unanimous consent. Indeed,
the Senate has occasionally enacted legislation by unanimous consent during pro forma
sessions. See infra p. 45. But as more fully explained below, we do not believe that this
sporadic practice requires the President to consider the Senate available to perform its
constitutional functions when it is in recess and, particularly, when it has provided by
order that no business will be conducted.
34
Recess Appointments Amid Pro Forma Senate Sessions
erty Opinion, 33 Op. Att’y Gen. at 25 (discussing the President’s “large,
although not unlimited, discretion to determine when there is a real and
genuine recess making it impossible for him to receive the advice and
consent of the Senate”). Indeed, as noted above, presidential messages
delivered to the Senate during previous recesses were not laid before that
body and entered into the Congressional Record until after the recess was
over, notwithstanding the convening of pro forma sessions before that
date. See supra note 5 & accompanying text. And the Senate has made
special arrangements for the appointment of its own officers during the
recess, in apparent recognition of the fact that it will not be in session for
the purpose of making appointments under its usual procedures. See supra
note 4 & accompanying text. “[T]he rationale for treating substantial
intrasession adjournments as ‘recesses’ for purposes of the Recess Ap-
pointments Clause is that substantial adjournments prevent the Senate
from acting on nominations.” Intrasession Recess Appointments, 13 Op.
O.L.C. at 273. By the same reasoning, brief pro forma sessions of this
sort, at which the Senate is not capable of acting on nominations, may be
properly viewed as insufficient to terminate an ongoing recess for purpos-
es of the Clause. 18
This view of the effect of pro forma sessions on the President’s recess
appointment power finds additional support in one of this Office’s prior
opinions, Recess Appointments During an Intrasession Recess, 16 Op.
O.L.C. 15. That opinion addressed the propriety of making recess ap-
pointments during a recess that began on January 3, 1992, and ended on
January 21, 1992. We noted that, aside from a “brief formal session on
January 3” at which the body conducted no business (and which evidently
was held to address the terms of the Twentieth Amendment, see infra note
22), the Senate had been in recess since November 27, 1991. 16 Op.
O.L.C. at 15 n.1. Thus, we observed that “[f]or practical purposes with
18 In reaching this conclusion, we need not look behind the actual terms of the Senate’s
orders. The Senate itself labels the sessions “pro forma” and specifies that there is to be
“no business conducted” during those sessions. See, e.g., 157 Cong. Rec. S8783 (daily ed.
Dec. 17, 2011). These orders make clear that the Senate cannot perform its advise-and-
consent role during the pro forma sessions. The issue we have been asked to address
relates to the legal effect of such sessions on the intrasession recess, and the Senate orders
on their face warrant the conclusion that the Senate is unavailable to provide advice and
consent during the intrasession recess.
35
36 Op. O.L.C. 15 (2012)
respect to nominations, this recess closely resembles one of substantially
greater length.” Id. To be sure, this Office there stated only that two
recesses broken solely by a pro forma session “closely resemble[]” a
single recess of greater length, not that they were constitutionally indis-
tinguishable from one. Nevertheless, we thought the effective length of the
recess relevant in determining whether the President could make a recess
appointment. The same consideration applies here. A lengthy intrasession
recess broken only by pro forma sessions closely resembles an unbroken
recess of the same length; thus, “[e]xcept for its brief formal session[s]
. . . the Senate will have been absent from [January 3, 2012] until [January
23, 2012], a period of [twenty] days.” Id. And in determining whether
such a recess triggers the President’s appointment authority under the
Recess Appointments Clause, we believe the critical inquiry is the “prac-
tical” one identified above—to wit, whether the Senate is available to
perform its advise-and-consent function. For practical purposes, the
President may properly view the Senate as unavailable for twenty days.
Second, allowing the Senate to prevent the President from exercising
his authority under the Recess Appointments Clause by holding pro forma
sessions would be inconsistent with both the purpose of the Clause and
historical practice in analogous situations. As explained above, the Recess
Appointments Clause has long been understood as intended to provide a
method of appointment when the Senate was unavailable to provide
advice and consent, so that offices would not remain vacant to the detri-
ment of the public interest. If the Senate can avoid a “Recess of the Sen-
ate” under the Clause by having a single Member “gavel in” before an
empty chamber, then the Senate can preclude the President from making
recess appointments even when, as a practical matter, it is unavailable to
fulfill its constitutional role in the appointment process for a significant
period of time. The purpose of the Clause is better served by a construc-
tion that permits the President to make recess appointments when the
Senate is unavailable to advise and consent for lengthy periods. See Pow-
er of President to Fill Vacancies, 2 Op. Att’y Gen. 525, 526–27 (1832)
(“[A] construction that defeats the very object of the grant of power
cannot be the true one. It was the intention of the constitution that the
offices created by law, and necessary to carry on the operations of the
government, should always be full, or, at all events, that the vacancy
should not be a protracted one.”); cf. Wright v. United States, 302 U.S.
36Recess Appointments Amid Pro Forma Senate Sessions
583, 596 (1938) (“We should not adopt a construction [of the Veto Claus-
es] which would frustrate either of the[ir] purposes.”).
Further, Presidents have routinely exercised their constitutional authori-
ty to make recess appointments between sessions of Congress since Presi-
dent Washington made such appointments in the earliest days of the
Republic. Although we have focused in this opinion on the twenty-day
intrasession recess at the beginning of the second session, the Senate in
fact adjourned pursuant to an order that provided that there would also be
“no business conducted” for the final seventeen days of the first session.
This period of time, a total of thirty-seven days, in substance closely
resembles a lengthy intersession recess. See Recess Appointments During
an Intrasession Recess, 16 Op. O.L.C. at 15 n.1. Thus, an understanding
of the Recess Appointments Clause that permits the President to make
appointments during this recess also would be consistent with historical
practice.
Third, permitting the Senate to prevent the President from making re-
cess appointments through pro forma sessions would raise constitutional
separation of powers concerns. To preserve the constitutional balance of
powers, the Supreme Court has held that congressional action is invalid if
it “‘undermine[s]’ the powers of the Executive Branch, or ‘disrupts the
proper balance between the coordinate branches [by] prevent[ing] the
Executive Branch from accomplishing its constitutionally assigned func-
tions.’” Morrison v. Olson, 487 U.S. 654, 695 (1988) (quoting Commodity
Futures Trading Comm’n v. Schor, 478 U.S. 833, 856 (1986); Nixon v.
Adm’r of Gen. Servs., 433 U.S. 425, 443 (1977) (alterations in Morri-
son)); accord Loving v. United States, 517 U.S. 748, 757 (1996) (“[I]t
remains a basic principle of our constitutional scheme that one branch of
the Government may not intrude upon the central prerogatives of another.
Even when a branch does not arrogate power to itself . . . the separation-
of-powers doctrine requires that a branch not impair another in the per-
formance of its constitutional duties.” (citations omitted)).
The Constitution expressly confers upon the President the power to
make recess appointments when the Senate is unable to give its advice
and consent because it is in recess. It is the established view of the Execu-
tive Branch that
Congress may not derogate from the President’s constitutional au-
thority to fill up vacancies during recesses, by granting less power to
37
36 Op. O.L.C. 15 (2012)
a recess appointee than a Senate-confirmed occupant of the office
would exercise: “Provisions purporting to grant authority only to in-
dividuals confirmed by the Senate interfere with the President’s re-
cess appointment power, and are unconstitutional.”
Memorandum for J. Paul Oetken, Associate Counsel to the President,
from Randolph D. Moss, Assistant Attorney General, Office of Legal
Counsel, Re: Displacement of Recess Appointees in Tenure-Protected
Positions at 6 (Sept. 1, 2000) (quoting Statement Upon Signing H.R. 5678
(Oct. 6, 1992), 2 Pub. Papers of Pres. George H.W. Bush 1767, 1768
(1992); see also Memorandum for Walter Dellinger, Assistant Attorney
General, Office of Legal Counsel, from Richard Shiffrin, Deputy Assis-
tant Attorney General, Office of Legal Counsel, Re: Foreign Claims
Settlement Commission at 6 (Nov. 12, 1993) (the principle that “recess
appointees have the powers and rights of Senate-confirmed appointees” is
“a constitutional principle of great importance”). 19 In such circumstances,
however, the President can still make recess appointments. Senate action
that would completely prevent the President from making recess appoint-
ments in situations where the Senate is as a practical matter unavailable
would do even more to “disrup[t] the proper balance between the coordi-
nate branches,” Morrison, 487 U.S. at 695, and “intrud[e] upon” the
President’s constitutional prerogatives, Loving, 517 U.S. at 757; cf.
Daugherty Opinion, 33 Op. Att’y Gen. at 23 (“If the President’s power of
appointment is to be defeated because the Senate takes an adjournment to
a specified date, the painful and inevitable result will be measurably to
prevent the exercise of governmental functions. I can not bring myself to
19 These concerns also have been enunciated in other presidential signing statements.
See Statement on Signing the Energy Policy Act of 1992 (Oct. 24, 1992), 2 Pub. Papers of
Pres. George H.W. Bush 1962, 1963 (1992) (stating that a provision that “authorizes a
Transition Manager to exercise the powers of the Corporation until a quorum of the Board
of Directors has been ‘appointed and confirmed,’ must be interpreted so as not to interfere
with my authority under Article II, section 2 of the Constitution to make recess appoint-
ments to the Board”); Statement on Signing the Departments of Commerce, Justice, and
State, the Judiciary, and Related Agencies Appropriations Act, 1985 (Aug. 30, 1984),
2 Pub. Papers of Pres. Ronald Reagan 1210, 1211 (1984) (explaining that a bill intended
to restrict powers of recess appointees would raise “troubling constitutional issues”).
38
Recess Appointments Amid Pro Forma Senate Sessions
believe that the framers of the Constitution ever intended such a catastro-
phe to happen.”). 20
There is also some judicial authority recognizing the need to protect the
President’s recess appointment authority from congressional incursion.
See McCalpin v. Dana, No. 82-542, at 14 (D.D.C. Oct. 5, 1982) (“The
system of checks and balances crafted by the Framers . . . strongly sup-
ports the retention of the President’s power to make recess appoint-
ments.”), vacated as moot, 766 F.2d 535 (D.C. Cir. 1985); id. at 14 (ex-
plaining that the “President’s recess appointment power” and “the
Senate’s power to subject nominees to the confirmation process” are both
“important tool[s]” and “the presence of both powers in the Constitution
demonstrates that the Framers . . . concluded that these powers should co-
exist”); Staebler v. Carter, 464 F. Supp. 585, 597 (D.D.C. 1979) (“it is . . .
not appropriate to assume that this Clause has a species of subordinate
standing in the constitutional scheme”); id. at 598 (“It follows that a
construction of [a statute] which would preclude the President from mak-
ing a recess appointment in this situation—i.e., during a Senate recess and
after the statutory term of the incumbent [official] has expired—would
20 This Office occasionally has raised similar concerns about the constitutionality of
the Pay Act, 5 U.S.C. § 5503 (2006), which imposes certain restrictions on the payment of
recess appointees. See Memorandum for the Attorney General, from John O. McGinnis,
Deputy Assistant Attorney General, Office of Legal Counsel, Re: Recess Appointments
at 7 n.7 (July 7, 1988) (“Because it places limitations on the President’s exercise of his
constitutional authority, 5 U.S.C. § 5503 may be unconstitutional.”); Intrasession Recess
Appointments, 13 Op. O.L.C. at 276 n.6 (“If the [Pay Act] were to preclude the President
from paying a recess appointee in these circumstances, it would raise serious constitution-
al problems because of the significant burden that an inability to compensate an appointee
would place on the textually committed power of the President to make recess appoint-
ments.”). The Senate’s use of pro forma sessions to prevent the President from making
recess appointments, if valid, would constitute a greater restriction on recess appointment
authority than the terms of the Pay Act. The latter allows payment of recess appointees
under a number of circumstances and permits retroactive payment after a person serving
under a recess appointment has been confirmed. Foreign Claims Settlement Commission
at 9; Memorandum for Nicholas deB. Katzenbach, Assistant Attorney General, Office of
Legal Counsel, from Herman Marcuse, Attorney-Adviser, Office of Legal Counsel, Re:
Constitutionality of 5 U.S.C. 56 (Recess Appointments) at 1 (Sept. 27, 1961). In contrast,
the Senate’s use of pro forma sessions, if it had the effect of shortening recesses to a
period insufficient to constitute a “recess” under the Recess Appointments Clause, would
prevent the President from making recess appointments in the circumstances presented,
even if the person to be appointed would serve without compensation.
39
36 Op. O.L.C. 15 (2012)
seriously impair his constitutional authority and should be avoided [if it]
is possible to do so.”); see also Swan v. Clinton, 100 F.3d 973, 987 (D.C.
Cir. 1996) (rejecting an argument that “rests on the assumption that a
recess appointment is somehow a constitutionally inferior procedure”).
But see Wilkinson v. Legal Servs. Corp., 865 F. Supp. 891, 900 (D.D.C.
1994) (concluding, contrary to McCalpin and Staebler, that a holdover
provision could preclude a recess appointment), rev’d on other grounds,
80 F.3d 535 (D.C. Cir. 1996); Mackie v. Clinton, 827 F. Supp. 56, 57–58
(D.D.C. 1993) (same), vacated as moot, Nos. 93-5287, 93-5289, 1994 WL
163761 (D.C. Cir. Mar. 9, 1994).
We recognize that the Senate may choose to remain continuously in
session and available to exercise its advise-and-consent function and
thereby prevent the President from making recess appointments. But,
under the legal authority set forth above, the President may properly
determine that the Senate is not available under the Recess Appointments
Clause when, while in recess, it holds pro forma sessions where no busi-
ness can be conducted. Such sessions do not have the legal effect of
interrupting a Senate recess for purposes of the Recess Appointments
Clause.
3.
We have considered several counterarguments to our analysis. In our
judgment, these points, while not insubstantial, do not overcome the
conclusion presented above.
First, we considered that the Senate has employed pro forma sessions
in other contexts and that, in those contexts, a pro forma session may
have the same legal effect as any other session and thus may fulfill cer-
tain constitutional requirements. For example, pro forma sessions are
most commonly used to address the requirement that “[n]either House,
during the Session of Congress, shall, without the Consent of the other,
adjourn for more than three days.” U.S. Const. art. I, § 5, cl. 4; see U.S.
Senate Glossary, http://www.senate.gov/reference/glossary_term/pro_
forma_session.htm (last visited ca. Jan. 2012) (defining “pro forma
session” as a “brief meeting (sometimes only several seconds) of the
Senate in which no business is conducted”; “[i]t is held usually to satisfy
40
Recess Appointments Amid Pro Forma Senate Sessions
the constitutional obligation that neither chamber can adjourn for more
than three days without the consent of the other”). 21 In addition, in 1980,
and sporadically thereafter, pro forma sessions have been used to address
the Twentieth Amendment’s direction that, in the absence of legislation
providing otherwise, Congress must convene on January 3. 22 Pro forma
sessions have also been employed for parliamentary purposes, e.g., to
permit a cloture vote to ripen, or to hear an address. 23
Those precedents provide only weak support for the claim that a series
of consecutive pro forma sessions may be used to block recess appoint-
ments in the circumstances presented here. There is no evidence of a
21 Riddick’s Senate Procedure identifies several examples in which “the Senate pursu-
ant to a previous order has met for very brief periods and recessed over until a subsequent
date, not in excess of 3 days,” the earliest of which occurred in 1949. Id. at 251 & nn.1–3.
22 U.S. Const. amend. XX, § 2 (“Congress shall assemble at least once in every year,
and such meeting shall begin at noon on the 3d day of January, unless they shall by law
appoint a different day.”). Congress routinely enacts legislation when it wishes to vary the
date of its first meeting. See, e.g., Pub. L. No. 111-289 (2010); Pub. L. No. 105-350
(1998); Pub. L. No. 99-613 (1986); Pub. L. No. 94-494 (1978); Pub. L. No. 89-340
(1965); Pub. L. No. 83-199 (1953); Pub. L. No. 79-289 (1945). Occasionally, however,
Congress (or an individual House) uses a pro forma session to comply with the Twentieth
Amendment’s default date. The first such use of a pro forma session that we are aware of
occurred in 1980. See H.R. Con. Res. 232, 96th Cong., 93 Stat. 1438 (1979) (“[W]hen the
Congress convenes on January 3, 1980, . . . neither the House nor the Senate shall conduct
organizational or legislative business until Tuesday, January 22, 1980, [unless convened
sooner by House and Senate leaders].”). Thereafter, it appears to have remained rare until
the last decade. See H.R. Con. Res. 260, 102d Cong., 105 Stat. 2446 (1991) (providing
that neither House shall “conduct organizational or legislative business” on January 3,
1992); 151 Cong. Rec. S14,421 (daily ed. Dec. 21, 2005) (Senate order providing for “a
pro forma session only” on January 3, 2006”); 153 Cong. Rec. S16,069 (daily ed. Dec. 19,
2007) (same for January 3, 2008); 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2011) (same
for January 3, 3012). On at least one occasion, Congress has changed the date of the first
meeting of a session by law and both Houses held pro forma sessions to comply with that
law. See Pub. L. No. 111-121, 123 Stat. 3479 (2009) (providing that the second session of
the 111th Congress begin on January 5, 2010); 155 Cong. Rec. S14,140 (daily ed. Dec.
24, 2009) (Senate order providing for “a pro forma session only” on January 5, 2010); 156
Cong. Rec. H2–H8 (daily ed. Jan. 5, 2010) (“[N]o organizational or legislative business
will be conducted on this day.”).
23 See 133 Cong. Rec. 15,445 (1987) (“The Senate will go over until Monday pro for-
ma, no business, no speeches, just in and out, and the pro forma meeting on Monday
would qualify the cloture motion to be voted on Tuesday[.]”); 139 Cong. Rec. 3039, 3039
(1993) (“Any sessions will be pro forma or solely for the purpose of hearing the Presi-
dents’ Day address on Wednesday morning.”).
41
36 Op. O.L.C. 15 (2012)
tradition of using pro forma sessions to prevent a “recess” within the
meaning of the Recess Appointments Clause. That attempt began in 2007
with the 110th Congress. 24 There may be at least a limited tradition of a
House of Congress using consecutive pro forma sessions to avoid ad-
journments of more than three days without obtaining the other House’s
consent. 25 But past uses of pro forma sessions for housekeeping purposes
are not good analogies for the current use of pro forma sessions to block
appointments under the Recess Appointments Clause. The former uses
affect the operations of only the House in question, and the Constitution
provides that “[e]ach House may determine the Rules of its Proceedings,”
U.S. Const. art. I, § 5, cl. 2. Even uses in connection with interchamber
relations affect the Legislative Branch alone. The question whether the
24 It does appear, though, that the use of pro forma sessions to prevent recess appoint-
ments was at least contemplated as early as the 1980s. See 145 Cong. Rec. 29,915 (1999)
(statement of Sen. Inhofe) (“[Senator Byrd] extracted from [the President] a commitment
in writing that he would not make recess appointments and, if it should become necessary
because of extraordinary circumstances to make recess appointments, that he would give
the list to the majority leader . . . in sufficient time in advance that they could prepare for
it either by agreeing in advance to the confirmation of that appointment or by not going
into recess and staying in pro forma so the recess appointments could not take place.”).
25 For example, in 1929, a concurrent resolution provided that the House return from
summer recess on September 23, 71 Cong. Rec. 3045 (June 18, 1929). The House passed
a separate resolution providing that “after September 23, 1929, the House shall meet only
on Mondays and Thursdays of each week until October 14, 1929,” provided that the
Speaker could call them back sooner if “legislative expediency shall warrant it,” id. at
3228 (June 19, 1929). Although it was not so stated in the text of the resolution, it was
“agreed that there shall be nothing transacted [during the Monday and Thursday sessions]
except to convene and adjourn; no business whatever.” Id. at 3229 (statement of Rep.
Tilson); see also 8 Cannon’s Precedents of the House of Representatives § 3369, at 820
(1935) (describing this incident as one in which the House “provid[ed] for merely formal
sessions”). This arrangement was subsequently extended twice. 71 Cong. Rec. 4531–32
(Oct. 14, 1929) (H.R. Res. 59, described by Rep. Tilson as “the same resolution, the dates
being changed, as the original recess resolution passed by the House last June); id. at
5422 (Nov. 11, 1929). Subsequent examples from the Senate involve more formal agree-
ments to the pro forma nature of the sessions. See, e.g., 96 Cong. Rec. 16,980 (Dec. 22,
1950) (setting schedule of two consecutive pro forma sessions); id. at 17,020 (Dec. 26,
1950); id. at 17,022 (Dec. 29, 1950); 126 Cong. Rec. 2574 (Feb. 8, 1980) (setting sched-
ule of two consecutive pro forma sessions); id. at 2614 (Feb. 11, 1980); id. at 2853 (Feb.
14, 1980); 127 Cong. Rec. 190 (Jan. 6, 1981) (setting schedule of three consecutive pro
forma sessions); id. at 238 (Jan. 8, 1981); id. at 263 (Jan. 12, 1981); id. at 276 (Jan. 15,
1981).
42
Recess Appointments Amid Pro Forma Senate Sessions
use of pro forma sessions for those purposes is consistent with the Consti-
tution is not presented here. Assuming that such uses are constitutional,
however, it does not follow that pro forma sessions may be used to pre-
vent the President from exercising his constitutional authority to make
recess appointments when he determines that the Senate is unavailable to
provide advice and consent. 26 Put differently, whether the House has
consented to the Senate’s adjournment of more than three days does not
determine the Senate’s practical availability during a period of pro forma
sessions and thus does not determine the existence of a “Recess” under
the Recess Appointments Clause.
Second, it might be argued that, in light of the Senate’s power to “de-
termine the Rules of its Proceedings,” U.S. Const. art. I, § 5, cl. 2, the
Executive Branch would be bound by the Chamber’s own understanding
of whether the pro forma sessions have the legal effect of interrupting a
“Recess of the Senate” for the purposes of the Recess Appointments
Clause. The Rules of Proceedings Clause has been understood to grant the
Houses of Congress broad discretion in managing their internal affairs.
See, e.g., United States v. Ballin, 144 U.S. 1, 5 (1892) (“[A]ll matters of
method [of proceeding] are open to the determination of the house, and it
is no impeachment of the rule to say that some other way would be better,
more accurate or even more just.”). That Clause might also be understood
to permit them conclusively to determine when they are in session and
when they are in recess. See, e.g., Michael Herz, Abandoning Recess
Appointments?: A Comment on Hartnett (and Others), 26 Cardozo L.
Rev. 443, 459 (2005) (“I would think that pursuant to the authority of
each House to make rules for its own proceedings Congress could decide
to hold twelve ‘sessions’ each calendar year, with a few days off—
perhaps just a weekend—between them.”); cf. Arthur S. Miller, Congres-
sional Power to Define the Presidential Pocket Veto Power, 25 Vand. L.
26 Cf. Letter for Peter W. Rodino, Jr., Chairman, Committee on the Judiciary, U.S.
House of Representatives, from Robert G. Dixon, Assistant Attorney General, Office of
Legal Counsel at 4 –5 (Dec. 4, 1973) (“Under Section 2 of H.R. 7386, Congress could
prevent the exercise of a pocket veto, except at the close of a Congress, when one or both
Houses adjourned for several months, by adjourning either to a date certain or pro forma
to a date close to the beginning of the next working session. . . . To the extent that H.R.
7386 unconstitutionally permits Congress to keep a bill in suspended animation for
lengthy periods during adjournments other than sine die, it unconstitutionally narrows the
President’s pocket veto authority.”).
43
36 Op. O.L.C. 15 (2012)
Rev. 557, 567 (1972) (“Surely the determination of what constitutes
adjournment is a ‘proceeding’ within the terms of that section [the
Rules of Proceeding Clause].”).
The Supreme Court, however, has made clear that Congress’s power
under this provision is not unlimited, and specifically that Congress “may
not by its rules ignore constitutional restraints or violate fundamental
rights.” Ballin, 144 U.S. at 5. Thus, the validity and application of con-
gressional rules are subject to review in court when the rules affect inter-
ests outside of the Legislative Branch. See, e.g., United States v. Smith,
286 U.S. 6, 33 (1932) (“As the construction to be given the rules affects
persons other than members of the Senate, the question presented is of
necessity a judicial one.”); Ballin, 144 U.S. at 5 (“[T]here should be a
reasonable relation between the mode or method of proceeding estab-
lished by the rule and the result which is sought to be attained.”); Vander
Jagt v. O’Neill, 699 F.2d 1166, 1173 (D.C. Cir. 1983) (“Article I does not
alter our judicial responsibility to say what rules Congress may not adopt
because of constitutional infirmity.”). A Senate rule that pro forma ses-
sions interrupt a “Recess of the Senate” (or that otherwise seeks to pre-
vent the President from exercising authority under the Recess Appoint-
ments Clause) would affect other persons—the President and potential
appointees at the least. It would also disrupt the Constitution’s balancing
of executive and legislative authority in the appointments process. To be
sure, as explained above, the President’s authority to make recess ap-
pointments is constrained when the Senate is continuously in session and
available to perform its advise-and-consent function. But the Senate could
not by rule unilaterally prevent the President from exercising his authority
to make temporary appointments under the Clause by declaring itself in
session when, in practice, it is not available to provide advice and con-
sent, any more than the President could make a recess appointment when
the Senate was in practice available to do so. See Daugherty Opinion, 33
Op. Att’y Gen. at 25 (recognizing that a “palpable abuse” of the Presi-
dent’s “discretion to determine when there is a real and genuine recess” of
the Senate might subject his appointment to review”). 27
27The Senate’s scheduling of pro forma sessions to frustrate the President’s recess
appointment authority does not require us to treat the President’s constitutional recess
appointment authority as operating at the “lowest ebb” of presidential power under the
framework of Justice Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v.
44
Recess Appointments Amid Pro Forma Senate Sessions
Third, it could be argued that the experience of recent pro forma ses-
sions suggests that the Senate is in fact available to fulfill its constitution-
al duties during recesses punctuated by periodic pro forma sessions.
Twice in 2011, the Senate passed legislation during pro forma sessions by
unanimous consent, evidenced by the lack of objection from any member
who might have been present at the time. 157 Cong. Rec. S8789 (daily ed.
Dec. 23, 2011); id. at S5297 (daily ed. Aug. 5, 2011). During one of these
sessions, the Senate also agreed to a conference with the House, and
messages received from the House earlier in the intrasession recess were
put into the Congressional Record. 157 Cong. Rec. S8789–90 (daily ed.
Dec. 23, 2011). Conceivably, the Senate might provide advice and con-
sent on pending nominations during a pro forma session in the same
manner.
We do not believe, however, that these examples prevent the President
from determining that the Senate remains unavailable to provide advice
and consent during the present intrasession recess. The scheduling order
under which the pro forma sessions are held during this recess expressly
provides that there is to be “no business conducted.” 157 Cong. Rec.
S8783 (daily ed. Dec. 17, 2001). In our judgment, the President may
properly rely on the public pronouncements of the Senate that it will not
conduct business (including action on nominations), in determining
whether the Senate remains in recess, regardless of whether the Senate has
disregarded its own orders on prior occasions. Moreover, even absent a
Senate pronouncement that it will not conduct business, there may be
circumstances in which the President could properly conclude that the
body is not available to provide advice and consent for a sufficient period
to support the use of his recess appointment power. It is common for
Sawyer, 343 U.S. 579, 637 (1952). The Constitution explicitly grants recess appointment
authority to the President, and the Attorney General has long taken the position that,
through enactment of the Pay Act, Congress has “acquiesce[d]” to recess appointments
under circumstances where that Act would permit payment. See Recess Appointments, 41
Op. Att’y Gen. at 466; see also Appointments—Recess Appointments, 28 Comp. Gen. at
34, 37 (recognizing the “accepted view” that an extended intrasession adjournment of the
Senate is a “recess” in the constitutional sense during which “an appointment properly
may be made” and that recipients of such appointments were entitled to pay). Moreover, it
is unclear that Justice Jackson’s framework would apply in matters involving the balance
between the President’s constitutional authority to make recess appointments and a single
House of Congress’s constitutional authority to set its internal rules.
45
36 Op. O.L.C. 15 (2012)
resolutions of adjournment authorizing extended intrasession recesses to
provide that the Senate “stand[s] recessed or adjourned until [a specified
date], . . . or until the time of any reassembly” ordered by the leaders of
the two Houses “as they may designate whenever, in their opinion, the
public interest shall warrant it.” See, e.g., H.R. Con. Res. 361, 108th
Cong. (2004). That potential for reassembly by itself does not deprive an
extended Senate absence of its character as a recess. In fact, the Senate
had adjourned pursuant to such a resolution before the intrasession recess
during which Judge Pryor was appointed to the Eleventh Circuit. That
recess appointment was approved by this Office, see Goldsmith Memo-
randum, and upheld by the court of appeals en banc, see Evans v. Ste-
phens, 387 F.3d 1220.
Fourth, legal precedent addressing the President’s authority to pocket
veto during a recess a bill passed by Congress conceivably might be
viewed as constraining the President’s recess appointment authority in the
current recess. For example, in Wright v. United States, 302 U.S. 583, the
Supreme Court held that a temporary adjournment of the Senate (for
which consent of the House was not required under Article I, Section 5,
Clause 4 of the Constitution) did not prevent the President from vetoing a
bill. And in Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974), the D.C.
Circuit extended Wright to reach all intrasession adjournments, provided
that arrangements were made for the receipt of presidential messages. 28 It
could be argued that these cases either delineate the types of Senate ad-
journments that are insufficient to qualify as a “Recess of the Senate”
under the Recess Appointments Clause, or establish that the Senate can
take some action short of actually remaining in session to mitigate the
consequences of its absence.
We have previously observed that “[w]hile the Pocket Veto and Recess
Appointments Clauses deal with similar situations, that is, the President’s
powers while Congress or the Senate is not in session, their language, ef-
fects, and purposes are by no means identical.” Recess Appointments Issues,
6 Op. O.L.C. 585, 589 (1982). And “[i]n light of the[se] differen[ces] . . . we
do not believe [that Sampson] should be read as having any significant
28 In Barnes v. Kline, 759 F.2d 21, 41 (D.C. Cir. 1985), the court held that the Presi-
dent is not “prevent[ed]” from returning a bill even during an intersession recess if a duly
authorized officer of the originating house is available to receive it. That decision was
later vacated as moot. See Burke v. Barnes, 479 U.S. 361 (1987).
46
Recess Appointments Amid Pro Forma Senate Sessions
bearing on the proper interpretation of the Recess Appointments Clause.” Id.
at 590. Moreover, we have concluded that “there are sound reasons to be-
lieve that the President has authority to make recess appointments in situa-
tions in which a pocket veto might well be inappropriate.” The Pocket Veto:
Historical Practice and Judicial Precedent, 6 Op. O.L.C. 134, 149 (1982).
The Pocket Veto Clause “ensures that the President will not be de-
prived of his constitutional power to veto a bill by reason of an adjourn-
ment.” Recess Appointments Issues, 6 Op. O.L.C. at 590. The holdings in
Wright and Sampson—that the President could not pocket veto a bill
during an intrasession recess where the Senate had designated an agent to
receive the return of a bill—were “bottomed on the theory that [the ad-
journments at issue] did not ‘prevent’ the return of disapproved bills.” The
Pocket Veto, 6 Op. O.L.C. at 149. Put another way, the designation of an
agent to receive messages and the pocket veto serve the same purpose,
i.e., protecting the President’s right to disapprove bills, and therefore
obviate the need for the power provided by the Clause.
The Recess Appointments Clause, however, serves a different purpose. It
“enables the President to fill vacancies which exist while the Senate is
unable to give its advice and consent because it is in recess.” Recess Ap-
pointments Issues, 6 Op. O.L.C. at 590. The designation of an agent to
receive messages neither allows the President to fill vacancies nor makes the
Senate available to advise and consent. Thus, the President’s ability to make
appointments during a recess is necessary to further the Recess Appoint-
ments Clause’s purpose, while the President’s authority to pocket veto
arguably is not necessary when the presence of a congressional agent allows
him to return a bill, exercising his constitutional prerogative to disapprove
legislation. While the congressional designation of an agent arguably ad-
dresses the constitutional concerns embodied in the President’s pocket veto
authority, the periodic convening of pro forma sessions at which no business
is to be conducted simply does not address the constitutional concerns
arising from the Senate’s unavailability to consider appointments.
Finally, we considered whether the Department of Justice has already tak-
en a different view. In arguing that the recess appointment of a member of
the National Labor Relations Board (“NLRB”) did not render moot the
controversy about legal consequences of the absence of a Board quorum, the
Solicitor General said that “the Senate may act to foreclose [recess appoint-
ments] by declining to recess for more than two or three days at a time over
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36 Op. O.L.C. 15 (2012)
a lengthy period,” using the Senate’s 2007 pro forma sessions as an exam-
ple. Letter for William K. Suter, Clerk, Supreme Court of the United States,
from Elena Kagan, Solicitor General, Office of the Solicitor General, at 3
(April 26, 2010), New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010)
(No. 08-1457). This portion of the letter is focused on the question whether
an intrasession recess of three days or fewer constitutes a recess under the
Recess Appointments Clause. See id. (“[T]he Senate did not recess intra-
session for more than three days at a time for over a year beginning in late
2007.”); id. at 3 n.2 (“[O]fficial congressional documents define a ‘recess’ as
‘any period of three or more complete days . . . when either the House of
Representatives or the Senate is not in session.’” (quoting 2003–2004 Con-
gressional Directory 526 n.2 (Joint Comm. on Printing, 108th Cong., comp.
2003)). The letter (like this opinion, see supra note 13) does not answer that
question. Instead, the letter uses the uncertain status of recess appointments
during intrasession recesses of three or fewer days to argue that the possibil-
ity of recess appointments did not render New Process Steel moot. Thus, it
does not answer the question addressed here, whether pro forma sessions at
which no business is conducted interrupt a recess that is more than three
days long in a manner that would preclude the President from exercising his
appointment power under the Clause.
III.
In our judgment, the text of the Constitution and precedent and practice
thereunder support the conclusion that the convening of periodic pro
forma sessions in which no business is to be conducted does not have the
legal effect of interrupting an intrasession recess otherwise long enough to
qualify as a “Recess of the Senate” under the Recess Appointments
Clause. In this context, the President therefore has discretion to conclude
that the Senate is unavailable to perform its advise-and-consent function
and to exercise his power to make recess appointments.
VIRGINIA A. SEITZ
Assistant Attorney General
Office of Legal Counsel
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