What is the legality of recess appointments?

[dansolo]

The way that I read the Constitution, recess appointments are allowed for vacancies that occur when Congress is not in session. This makes a lot of sense, because it allows the President to overcome a vacancy that may occur because of a death or incapacitation or resignation, without having to wait for Congress to return. I don't believe that it should be used to fill positions that were already vacant when Congress was still in session. I know that both Republicans and Democrats have used recess appointments, but I do not believe that the way they are used is what the Founding Fathers intended.

[ncteechur]

1. I agree--posted the same thing earlier under the Bolton thread.

[tritsofme]

2. IIRC Ted Kennedy sued when Bush recess appointed Pryor

and the court opted not to hear the case.

Democrats then threatened to filibuster all of Bush's judicial nominees unless he promised not to use his recess appointment power again. They agreed, and many judges were allowed to be confirmed.

However this deal was from the 108th Congress, and did not apply to executive nominees.

[quaoar]

3. Here's an explanation I found

http://slate.msn.com/id/1002994/

on the final day of a congressional recess, President Clinton appointed James Hormel ambassador to Luxembourg without Senate confirmation. The move prompted Sen. James Inhofe, R-Okla., to remark, " has shown contempt for Congress and the Constitution." Is Inhofe right?

Clinton's act was certainly constitutional. A recess appointment is one of the executive powers enumerated in 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" (II, 2, 3). The provision was originally created to fill vacancies that actually occurred during a recess, but it has since morphed into an all-purpose executive tool to counter Senate intransigence. President Kennedy, for instance, appointed Thurgood Marshall to the bench during a recess because he feared opposition from Southern senators. By the time Marshall's nomination came before the Senate, that resistance had been beaten back.

Presidents also use recess appointments to delay a confirmation vote until after an election, when the nominee possesses the advantage of incumbency and, ideally, faces a friendlier Congress. President Eisenhower appointed three justices during recesses: Earl Warren, William Brennan, and Potter Stewart. All three occurred immediately before an election, and all were confirmed the following spring by a new Congress.