The Recess Appointments Clause of Article II, section 2 provides 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.” This odd clause basically allows the President to make appointments to high positions without Senate confirmation if the Senate is not currently in session. As I discuss in one of the chapters of my forthcoming book, there are some interesting issues that go along with the clause. For example, what counts as “the Recess” of the Senate? Is it just the break between the two sessions of any particular Congress, or do smaller breaks, like a holiday vacation, count as well. Can the President appoint a judge without Senate confirmation over the Christmas break? Over the weekend? Overnight? During a coffee break?
Another issue is what the clause means by “happen”? Does it mean that the vacancy has to have actually come into being while the Senate is at recess (whatever “recess” means), or does it simply mean that the vacancy has to exist during a recess? Courts that have weighed in on this question have said that it’s the latter, and this makes sense because the point of the clause is to give the President the power to fill important positions in a hurry when the Senate is not around for a confirmation vote. If “happen” meant something like “actually come into being” then the President, for example, would not be able to fill the position of Secretary of State if the old Secretary died one day before a six week break began. That wouldn’t make any sense.
Recently, the issue has arisen whether President Obama could fill the position of head of the newly created Consumer Financial Protection Bureau through a recess appointment, since any appointment Obama might make there (e.g., Elizabeth Warren) is likely to be controversial. Congressman Spencer Bacchus has suggested that Obama does not have the power to make such a recess appointment because there has never before been a head of this commission, and therefore we can’ t logically say there is a “vacancy.” Bacchus makes this point here.
The question turns on what counts as a “vacancy.” I don’t know if this precise issue has ever arisen before. I doubt it. On the one hand, the purpose of the clause suggests that Bacchus is wrong–if an important position is empty or unfilled, and the President thinks it’s important to get someone in there, and the Senate isn’t around to confirm the appointee, then the recess appointments clause should give him the power to fill the position (whether he should do so, as a political matter, or as a matter of deference to Congress, is a very different question). But on the other hand, the word “vacancy” does suggest that someone has “vacated” the position, in which case the clause would only apply to positions that previously have been filled by someone who has left for whatever reason. So in that sense maybe Bacchus is correct. Just one more fascinating question in the world of the weird clauses of our founding document.