Recess Appointments: Does the Constitution Mean What It Says?

By Howard, Robert M. | Justice System Journal, January 1, 2006 | Go to article overview

Recess Appointments: Does the Constitution Mean What It Says?


Howard, Robert M., Justice System Journal


On April 9, 2003, President George W. Bush nominated William H. Pryor, Jr., to the United States Court of Appeals for the Eleventh Circuit. His confirmation stalled in the Senate when many interest groups objected to his views on various matters. With the nomination languishing in the United States Senate, Congress adjourned for twelve days in mid-February 2004, taking advantage of the Presidents' Day holiday weekend. During the congressional recess period, President Bush used his recess-appointment power to install Pryor as judge, thus bypassing the confirmation process in the U.S. Senate. Pryor then resigned his position as attorney general for the state of Alabama and took his judicial oath for a term lasting until the end of 2006, when the next Congress begins.

The Senate eventually confirmed Pryor as a judge. However, prior to his confirmation, the plaintiffs challenged the authority of the president to make this type of recess appointment. In Evans v. Stephens, 387 F.3d.1220 (2004), a divided en banc Eleventh Circuit rejected the plaintiffs' contentions and, with majority and dissenters differing on the plain meaning of the United States Constitution, upheld the appointment of their colleague, Judge Pryor.

Writing for the majority, Chief Judge J. L. Edmondson relied on text, intent, historical practice, and precedent to support the constitutionality of the appointment. First, he focused on the language of Article II, Section 2, Clause 3. The court noted that the Constitution specifically says 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," and that "Vacancies" refers to "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." To the majority, the plain meaning of this clause was that the President is allowed to make temporary recess appointments to these offices, including all Article III courts, such as the United States Circuit Courts of Appeals, without Senate approval.

The court then went on to observe that since the beginning of the republic, presidents have made over 300 recess appointments to the federal judiciary, including fifteen to the United States Supreme Court. As there is no explicit reference in the Constitution to any limitation of powers of recess appointees, they have the same authority as those judges nominated and confirmed by the Senate, with the sole important exception and limitation that their term expires at the end of the next congressional session. The court found additional support for its position in two prior cases from the Second and Ninth Circuits, both of which had accepted the view that the recess-appointment power includes appointments to Article III courts.

The next issue addressed was the meaning of "recess." The plaintiffs and the dissent argued that a "recess" did not mean a ten- or eleven-day "intrasession" vacation but rather referred to a longer "intersession" break, when there would be a significant need for government continuity and the administration of justice that would be severely hampered waiting for Congress to return.

The majority, however, disputed this view, holding that there is no express language to support this interpretation of recess. The court held that the phrase "the Recess of the Senate" does not limit the president to intersession as opposed to intrasession recesses. There is no language referring to any minimum time in these clauses, and presidents have several times made appointments during intrasession recesses even shorter than that in which the Pryor appointment was made.

Finally, the court discussed the meaning of the phrase "Vacancies that may happen during the Recess." The plaintiffs had argued that the plain meaning of this phrase is that the vacancy must occur during the recess for the president to exercise the recessappointment power. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Recess Appointments: Does the Constitution Mean What It Says?
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.