The Constitution (Article II, Section 2, Clause 3) specifically allows the President to make a temporary appointment to an executive branch position without Senate approval if the Senate is in recess. This appointment, known as a “recess appointment” allows the individual to serve in the position until the end of the current Congress. In this case, January 2009.
While there is little existing commentary by the Founders on this provision, it is widely assumed it was included to maintain the continuity of government in at a time when the Congress was in session less than half the year. In recent years, however, the Congress is in session most of the year, making the recess appointment pretty much a legislative tool of the executive. President Clinton made 139 recess appointments and President Bush has so far made 167.
The growing use of the recess appointment process is another sign of the strain between the two political parties in Washington. The Democrats control the Senate, but even when Republicans held control during the middle four years of President Bush’s two terms, the Democrats had sufficient numbers to block or filibuster any nominees they did not approve of. (This is not a partisan statement, the same thing applied when there was a Democrat president and a Republican Congress). Usually when frustration spills over, the President, either to spite the opposition or to make a political statement, makes a recess appointment to a disputed position.
The appointment of John Bolton as Ambassador to the United Nations was an example of a nomination that was being filibustered in the Senate. The Senate could not break the Democrat filibuster and President Bush appointed Bolton to the job where he served until the end of the 109th Congress.
Another reason any President might make recess appointments is to make sure the Senate does not make it impossible for a “lame duck” to carry out his or her executive responsibilities by simply refusing to confirm Cabinet secretaries and other key executive positions in the final months of an administration.
Regardless off the reason, the recess appointment has evolved into a political tool used by Presidents to counteract obstructionist tactics of the opposition party in the Senate.
There are some rarely used countermeasures the Senate can impose on a recess appointment. The Senate can bring up the nomination and vote down the nominee, although as a practical measure this almost never happens – if the Senate could defeat the nominee without a filibuster it would go ahead and do so in regular order.
However, even this rarely used authority is limited, as a federal court ruled it did not apply to judicial nominees since a judge can only be removed for “impeachable” offenses.
Stating the obvious, the Senate can also go ahead an approve the nomination, which would restore the individual to normal status. This is what the Senate did with William Pryor’s appointment to the Eleventh Circuit Court in 2006.
Of course, if there is no recess, there can be no recess appointments. The House and Senate take several recesses through the year. Traditionally, they have taken a two-week recess for the Thanksgiving holiday. The Constitution says (Article I, Section 5, Clause 4) that “Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days…”
So, in order to allow the Senators to leave Washington for more than three days as if it were in a recess without actually declaring a recess, the Senate meets in what is called “pro forma” session once every three days. Pro forma means, “in form only.” In the case of a pro forma session of the Senate, the Senate convenes, the chaplain says a prayer, and Senate adjourns. The Majority Leader usually needs the cooperation of a majority party Senator who lives in Washington D.C. or represents one of the nearby jurisdictions.
As long as the Senate conducts a pro forma session every three days it is never actually in recess and the President cannot make a recess appointment. In this way, Majority Leader Reid prevented President Bush from making any additional recess appointments over the Thanksgiving recess.