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. …