Academic journal article Presidential Studies Quarterly

The Law: Can the President Recess Appoint a Vice President?

Academic journal article Presidential Studies Quarterly

The Law: Can the President Recess Appoint a Vice President?

Article excerpt

While the constitutional aspects of the president's recess appointment power have been scrutinized closely over the years (Herz 2005; Note 1957; Rappaport 2005), the question of a president unilaterally and temporarily installing a vice president through the Twenty-Fifth Amendment has received no full-length treatment in the academic literature. (1) Notwithstanding this scholarly inattention, the issue warrants close examination in light of the great importance the vice presidency has come to assume in American government (Goldstein 1982, 3); the gradual enhancement of the president's recess appointment power over the course of two centuries (Rappaport 2005, 1490-91); and the increasing regularity with which presidents have taken such actions in recent decades (Black et al. 2011, 577). Thus, the possibility of a vice presidential recess appointment represents a new frontier for the potential expansion of this presidential power; not unlike President Barack Obama's recent and novel exercise of recess appointment power during a pro forma session of the Senate (Office of Legal Counsel 2012, 4; see also Meese and Gaziano 2012). Upon review of both sides of the issue, this article concludes that the legal arguments in favor of vice presidential recess appointments fall well short of the mark and that such a step should not be attempted by a future president.

Relevant Constitutional Text and History

Under article II of the U.S. Constitution, the president makes appointments of senior executive branch officials, ambassadors, and federal judges subject to the advice and consent of the Senate. Section 2, clause 2 reads 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." When the Senate is in recess, however, the president has the authority to make "recess appointments." In this regard, article II provides that "[t]he 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." As a result, not infrequently the president will unilaterally install an official during a Senate recess with the individual serving until the conclusion of the next session of Congress.

At the same time, under section 2 of the Twenty-Fifth Amendment, the president has authority to nominate a vice president subject to the approval of both houses of Congress. The Constitution in this instance requires that "[w]henever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both houses of Congress."

At the outset, it bears noting that there is no judicial or political precedent to follow regarding whether the president may recess appoint a vice president. In U.S. history, only two individuals have ever been elevated to the vice presidency under the Twenty-Fifth Amendment. President Richard Nixon nominated Gerald Ford to be his vice president in 1973 (Nixon 1975, 867-70), and President Ford in turn nominated Nelson Rockefeller to serve in the same capacity the very next year (Ford 1975, 28-30). Both Ford and Rockefeller were confirmed by both houses of Congress, and neither was nominated during a congressional recess. (2)

Arguments against the President Having the Authority to Recess Appoint a Vice President

Textual Differences between Article II and the Twenty-Fifth Amendment

A comparison of article II and the Twenty-Fifth Amendment reveals that there are at least six textual reasons why the president cannot lawfully recess appoint a vice president. Taken all in all, these textual considerations reveal that the terminology of article II and that of the Twenty-Fifth Amendment are fundamentally different and that this divergence clearly demonstrates two distinct processes at work (Bloom 2009, 39; Harmelin v. …

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