The Federalist No. 67, written by Alexander Hamilton and published in March 1788, discussed the power of the executive to grant recess appointments under the US Constitution. According to Hamilton, the Framers of the US Constitution intended that the recess appointments clause at Article II, Section 2, Clause 3 supplement Clause 2 of the same section. The recess appointments clause states that "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." Clause 2 states the president "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, whose appointments are not herein otherwise provided for, and which shall be established by law." Hamilton argued that the recess power was an alternative, supplementary means to appoint officers and reduce the delay in filling vacancies.
In the years following ratification of the Constitution, presidents exercised the recess appointment power. The recess appointment allowed early presidents to fill vacancies that would occur during Congress' six month recess.
The passage of the 20th Amendment decreased the recess between sessions of Congress. One of the most extensive exercises of the recess appointment power occurred during the presidency of Theodore Roosevelt. On December 7, 1903, Roosevelt issued 193 recess appointments during a Senate recess that lasted for a matter of seconds. President Dwight Eisenhower conducted two high profile recess appointments, the appointment of Chief Justice Earl Warren in October 1953 and Justice William Brennan in October 1956.
The federal courts explored [PDF] the recess appointment clause in three key cases. In 1962, in response to Eisenhower's appointment of a lesser federal judge, the US Court of Appeals for the Second Circuit held in US v. Alloco that the president may exercise the recess appointment power to fill a vacancy that occurred while the Senate was in session. In 1985, the US Court of Appeals for the Ninth Circuit issued a similar holding in US v. Woodley, which continued to recognize the power of the president to fill all vacancies during the Senate's recess, even those that came about while the Senate was in session. In 2004, the US Court of Appeals for the Eleventh Circuit held in Evans v. Stephens that the president can issue recess appointments during an intrasession recess.
Presidents have taken advantage of the constitutional power to make recess appointments since the first administration. According to a history of judicial appointments written by the Congressional Research Service, President George Washington appointed [PDF] 12 federal court judges using the recess clause between 1789 and 1799, 11 of which were later confirmed by the US Senate. President Washington used the recess clause to appoint John Rutledge Chief Justice of the US Supreme Court. A former Associate Justice of the Supreme Court, Rutledge was an outspoken critic of the recently passed Jay's Treaty. When Rutledge was formally nominated for the Chief Justice position, the Senate refused to confirm him. Rutledge, whose sanity was already under question, attempted to kill himself and resigned the post.
Contemporary presidential administrations have used recess appointments to a varying degree. Mother Jones magazine calculated that President Reagan "...made 240 recess appointments, President George H. W. Bush made 77 recess appointments, President Bill Clinton made 140 recess appointments, and George W. Bush made 171." As of June 11, 2013, President Obama has made [PDF] 32 recess appointments.
President George W. Bush's controversial recess appointment of John Bolton as ambassador to the United Nations (UN) in August 2005 "...drew sharp protests from Democrats," according to the Washington Post. Many Democrats assumed that President Bush would not use the recess clause to fill such a high level position, although the administration stated that there was nothing wrong with the appointment. Bolton's recess appointment was temporary, and knowing that he would not be permanently approved by the Senate when the position was filled in December 2006, he resigned.
In January 2012, President Obama used the recess clause to appoint three members to the National Labor Relations Board (NLRB) and the Director of the Consumer Financial Protection Bureau. However, because the Senate was technically in a "pro forma" session and not in recess, the appointments came under Republican scrutiny. The appointments were invalidated in January 2013 by the US Court of Appeals for the District of Columbia Circuit and threw into question the validity of hundreds of NLRB decisions. The NLRB petitioned the Supreme Court in March 2013 to uphold the recess appointments. The Supreme Court agreed, in June 2013, to review the decision.
In June 2013, the US Supreme Court agreed to hear arguments during the October 2013 term on the controversy regarding the constitutional limits of the president's recess appointment power. The Court granted certiorari to a petition by the president following a case, National Labor Relations Board (NLRB) v. Noel Canning, in which the US Court of Appeals for the District of Columbia found certain recess appointments made by President Barack Obama unconstitutional. The Court will address two issues. The first is whether the president's recess-appointment power may be exercised during a recess that occurs within a session of the Senate or is instead limited to recesses that occur between enumerated sessions of the Senate. The second is whether the president's recess-appointment power may be exercised to fill vacancies that exist during a recess or is instead limited to vacancies that first arose during that recess.
In this case, decided in January 2013, the US Court of Appeals for the District of Columbia held that President Obama unconstitutionally exceeded his recess power when he appointed three members of the NLRB on January 4, 2012. The appointments occurred during a time when the Senate was convening every three days in pro forma sessions. The court ruled that the president can only exercise his power under the Recess Appointments Clause, Art. II § 2, cl 3, during "the Recess of the Senate."
The case came following a decision by the NLRB that Noel Canning, a Pepsi-Cola bottler and distributor based in Washington State, violated the National Labor Relations Act. The company challenged the constitutionality of the appointments in court, stating that the decisions should not stand due to the nature of the appointments.
Two other lower courts, the US Courts of Appeal for the Fourth and Third Circuit, issued similar rulings. In July 2013, the Fourth Circuit invalidated two decisions by the NLRB against Enterprise Leasing Company Southeast and Huntington Ingalls, Inc. based on the alleged unconstitutionality of the appointments. The Third Circuit invalidated a ruling against a nursing and rehabilitative care center following their refusal to bargain with elected union officials based on similar constitutional grounds in May 2013.