While the Senate was in recess pursuant to a resolution providing for a recess with sessions twice a week, the President made appointments that would ordinarily require the advice and consent of the Senate.
The Recess Appointments Clause applies to intra-session recesses of the Senate and to vacancies that come into existence while the Senate is in session, but the Senate is in session whenever it says it is in session and can retain the capacity to transact Senate business, according to its own rules.
The Senate was in recess pursuant to a resolution that provided for a series of brief recesses punctuated by pro forma sessions with “no business . . . transacted” twice a week for a specified period of time. During this recess, the President made appointments of individuals to federal office that would ordinarily require the advice and consent of the Senate.
Were the president’s appointments within the scope of the Recess Appointments Clause?
The President’s appointments were not within the scope of the Recess Appointments Clause.
Justice Scalia argued that the Recess Appointments Clause
A clause in Article II, Section 2 of the U.S. Constitution giving the president the power “to fill up all [v]acancies that may happen during the [r]ecess of the Senate, by granting Commissions which shall expire at the [e]nd of their next [s]ession.”
only applies to the recesses between formal sessions of the Senate, and that, accordingly, the President’s appointments here were invalid because they were made during a session of the Senate.
The Supreme Court held that the Recess Appointments Clause applied to infra-session recesses of the Senate, and not just the recesses between formal sessions of Congress. The Supreme Court analyzed the text of the Constitutional phrase “the recess,” determined the meaning of the recess was ambiguous, and chose the broader interpretation accordingly.
The Supreme Court held that the Recess Appointments Clause applied to vacancies that arise while the Senate is in session, and not just to vacancies that arise during a recess. The Supreme Court arrived to this conclusion by determining that the word “happens” as it occurs in the Recess Appointments Clause can be used to refer to a continuing state, and by referencing the historical practices of presidents and the Senate in interpreting the Clause.
The Supreme Court held that the Senate’s pro forma sessions counted as sessions, and not periods of recess. According to the Supreme Court, the Senate is in recess when it says it is in recess and retains the capacity to transact Senate business, which it did here. Because the Senate was not in recess, the President could not make appointments under the Recess Appointments Clause.