The Contemporary Presidency: Powering Down the Presidency: The Rise and Fall of Recess Appointments

Abstract

While established in the Constitution as a means of filling key posts during long gaps between legislative sessions, recess appointments have recently become a common and essential tool for bypassing procedural hurdles in the Senate and maintaining adequate staffing in federal bureaucracies. Despite being ubiquitous in the past three decades, recess appointments may now be relegated to the status of constitutional relics. This development is due to the related trends of using pro forma congressional sessions to deny presidents an opportunity to issue recess appointments and the recent Senate precedent that all reduces the power of the filibuster on executive nominations. Now, depending on whether government is divided, presidents either cannot use or do not require recess appointments. This article explores the future prospects for recess appointments as well as the theoretical implications for the demise of this unilateral power.