|Principal Writer:||Barry Shatzman|
|Understanding The Issue|
Reported NewsGov: Presidential Appointments
Related Court Cases(2014) NLRB v. Noel Canning
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How do presidential appointments work?
The president of the United States appoints his cabinet, agency members, ambassadors, federal judges, and Supreme Court justices. Most of these appointments require approval by the Senate, as specified in Article 2, Section 2 of the Constitution.
Other than federal judges - who always require Senate confirmation - there has been debate throughout the country's history on exactly which officials this requirement applies to.
Historically, most presidential appointees have quickly been confirmed by the Senate. This has changed in recent administrations, creating a large backlog of nominations to be considered and leaving agencies leaderless or without enough members to legally perform their functions.
How has this become an issue?
When the president and the majority of the Senate are of different parties, the Senate simply can refuse to confirm a nominee by taking a vote.
When the president and the majority of the Senate are of the same party, the minority can use delaying tactics such as the silent filibuster.
This especially has been true in the Obama administration. The Republican minority in the Senate has filibustered more of President Obama's nominations than those of all other presidents combined.
Many other nominees for courts or agencies have faced "holds" by individual Republican senators, resulting in an average time of more than 100 days for Obama appointments to be approved. This has weakened agencies, which cannot act decisively without a head.
Presidents use recess appointments to bypass Congress
According to Article 2, Section 2 of the Constitution...
"The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."
Presidential appointments made during a Senate recess are called recess appointments. They do not require Senate approval.
This chart shows how often recess appointments have been used by recent presidents to bypass Senate opposition...
Recess appointments are not permanent. They remain in effect only throughout the next session (unless the Senate later confirms the appointee).
It's up to interpretation how recess appointments can be made
The scope of a president's ability to make recess appointments is not completely clear. One interpretation of the founding fathers' intent is that...
The ordinary power of appointment is confined to the President and Senate JOINTLY, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen IN THEIR RECESS, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, SINGLY, to make temporary appointments "during the recess of the Senate, by granting commissions which shall expire at the end of their next session."
During the early days of the country, Congress might be in session for less than half of the year, leaving long periods when critical positions could not otherwise be filled.
How can the Senate prevent recess appointments?
In recent administrations, the Senate has prevented various recess appointments by holding pro forma sessions every few days during planned recesses. This appeared to be a tactic that a president could not overcome.
In Jan. 2012, however, while a few Senate Republicans held pro forma sessions every three days to technically prevent the Senate from going into a recess, President Obama made four recess appointments anyway. This seemed to give the president the final word.
These appoints were challenged, and in 2014 the Supreme Court ruled them to be invalid in National Labor Relations Board v. Noel Canning. So for now, at least, the Senate appears to be able to control a president's ability to make appointments.