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The Courts and the Executive Branch have firmly rejected any notion that “a recess appointment is somehow a constitutionally inferior procedure, not entirely valid or in some way suspect” based on the argument that “the normal appointment process envisioned by the Constitution is nomination by the President with confirmation by the Senate.”12
“The Constitution . . . must be regarded as one instrument, all of whose provisions are to be deemed of equal validity.”13 The Appointments Clause, taken in juxtaposition with the Recess Appointment Clause, is no exception. A recess appointee, just like a Senate-confirmed appointee, “is appointed by one of the methods specified in the Constitution itself . . . he holds the office; and he receives its pay.”Furthermore, “[t]here is nothing to suggest that the Recess Appointments Clause was designed as some sort of extraordinary and lesser method of appointment, to be used only in cases of extreme necessity.”15
Recess of the Senate
Under the Recess Appointments Clause, thePresident’s constitutional power to recessappoint Officers to vacant Officeswithout the advice and consent of the Senateis triggered either by an inter-session recess of the Senateor byan intra-session recess of the Senate. The Senate or the House “announces an inter-session recess by approving a resolution stating that it will ‘adjourn sine die,’ i.e., without specifying a date to return (in which case Congress will reconvene when the next formal session is scheduled to begin),” whereas the Senate or House “announces any such ‘intra-session recess’ by adopting a resolution stating that it will ‘adjourn’ to a fixed date, a few days or weeks or even months later.” NLRB v. Noel Canning, 573 U.S. 513, 526 (2014).
Although the applicability of “Recess of the Senate” to intra-session recesses is less clear as a textual matter, this construction has been solidified, indeed liquidated, by longstanding practice, as “Presidents have made thousands of intra-session recess appointments” since 1929. Id. at 529. For example, during intra-session recesses, President Franklin D. Roosevelt recess appointed Dwight D. Eisenhower as a permanent Major General, President Harry Truman recess appointed Dean Acheson as Under Secretary of State, and President George H.W. Bush recess appointed Alan Greenspan as Chairman of the Federal Reserve Board. Id.
However,not every nominal“Recess of the Senate” (whether inter-session or intra-session) of the Senatepermits use of the President’s recess appointment power. The Congressional Adjournments Clause provides that “[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three [3] days.”16 Derived from this bicameral consent-to-adjourn requirement is the rule of thumb that if the Senate’s recess is “so short that it does not require the consent of the House, it is too short [per se] to trigger the Recess Appointments Clause.” Noel Canning, 573 U.S. at 538. The Supreme Court synthesized from this rule of thumb and historical practice that a Senate Recess “of more than 3 days but less than 10 days ispresumptivelytoo short to fall within the Clause” as well.17 Id. (emphasis added).
Thus, if the Senate is in recess for at least 10 days, the President may grant recess commissions to fill up all vacancies in Offices for any reason, i.e. ones that (1) may still exist as a sine die adjournment period begins or that arise after the sine dieadjournment period begins but before it ends (inter-session recesses); (2) may still exist as an intra-session recess begins, or (3) may arise during the intra-session recess itself (with categories (2) and (3) both being species of intra-session recesses). Recess commissions granted by the President to fill vacant Offices retain constitutional validity until either the Senate confirms the recess appointee for permanent appointment to the Office (if the President opts to use the Appointments Clause) or otherwise until the end of the next session of the Senate if the President desires to use only the Recess Appointments Clause. A President who grants a recess commission traditionally also seeks permanent appointment of the recess appointee to the Office by simultaneously submitting his nomination to the Senate for full consideration under the advice-and-consent check. For this reason, recess appointments are not invariably a mechanism that bypasses the Senate.
Next, theFramers very deliberately bestowed upon the President authority to adjourn the Congresswhen the two Houses of that body disagreed about whether to take a recess.Indeed, they are prevented from returning to their duties until the President deems that return to be fitting:…
https://americarenewing.com/issues/brief-on-the-article-ii-recess-appointments-clause/