The Constitution provides two methods by which the President may make appointments. First, the Appointments Clause establishes that 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. It has generally been opined that the Recess Appointments Clause was designed to enable the President to ensure the operation of the government during periods when the Senate was not in session and therefore unable to perform its advice and consent function. Though used to foster administrative continuity, Presidents also have exercised their recess appointment power for political purposes throughout the history of the republic, giving rise to significant political and legal controversy. However, with evolving legislative responses meant to curb the President's use of his recess appointment power, the Supreme Court had occasion to address the scope of this Clause and the meaning of these phrases for the first time. In 2014, the Court in Nat'l Labor Relations Bd. Scope of the Recess Appointments Clause

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 (emphasis added). II, §2, cl. Supreme Court Interpretation of the Recess Appointments Clause

In NLRB v. Noel Canning , the Supreme Court ruled that the three recess appointments to the NLRB were constitutionally invalid because the Senate was in an intra-session recess of only three days, a time period it considered too short to trigger the President's recess appointment power. Because the NLRB recess appointments are invalid under the minority's interpretation of the Recess Appointments Clause alone, Justice Scalia did not examine the significance of pro forma sessions. While 31 U.S.C. The concerns raised in Staebler , which questioned the constitutionality of the restrictions with regard to recess appointments, coupled with the broad interpretation of the Recess Appointments Clause in Noel Canning , could be seen as arguably giving rise to an expansive interpretation of the President's recess appointment power. Authority and Tenure of Recess Appointees

As a fundamental matter, a recess appointee possesses the same legal authority as a confirmed appointee. These conclusions relied on the Supreme Court's 1824 decision in United States v. Kirkpatrick , where the Court held that a new appointment made by the President, by and with the advice and consent of the Senate, once accepted by the individual "was a virtual superseding and surrender of the former commission," which was a recess appointment made pursuant to the statute at issue (as opposed to the President's constitutional recess appointment power).
The U.S. Constitution explicitly provides the President with two methods of appointing officers of the United States. First, the Appointments Clause provides the President with the authority to make appointments with the advice and consent of the Senate. Specifically, Article II, Section 2, clause 2 states that 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." Second, the Recess Appointments Clause authorizes the President to make temporary appointments unilaterally during periods when the Senate is not in session. Article II, Section 2, clause 3 provides: "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."
While the Recess Appointments Clause enables the continuity of government operations, Presidents, on occasion, have exercised authority under the Clause for political purposes, appointing officials who might otherwise have difficulty securing Senate confirmation. This constitutional provision is not without its ambiguities, and the President's use of his recess appointment power in light of these ambiguities has given rise to significant political and legal controversy since the beginning of the republic. President's Obama's three recess appointments to the National Labor Relations Board (NLRB) on January 4, 2012, once again raised questions regarding the scope of the Recess Appointments Clause as well as the significance of the Senate's pro forma sessions in relation to the President's ability to exercise his recess appointment authority. The constitutionality of these recess appointments was challenged, and for the first time, the Supreme Court examined the scope of the Recess Appointments Clause and how it should be interpreted.
This report provides an overview of the Recess Appointments Clause, by first exploring its historical application and legal interpretation by the executive, legislative, and judicial branches. It then reviews the Supreme Court's decision in Nat'l Labor Relations Board v. Noel Canning in which all nine Justices affirmed the constitutional invalidity of these recess appointments. The Justices, however, were divided with respect to the proper interpretation of the Clause and the basis upon which the NLRB recess appointments would be ruled invalid. Also examined in this report is congressional legislation designed to prevent the President's overuse or misuse of the Clause, as well as the authority and tenure of recess appointees.