Free The Odd Clauses by Jay Wexler

and go home at night and ordinarily have holidays and weekends off. They also enjoy a number of intrasession breaks (I’d call them “recesses” except that whether they deserve to be called “recesses” is kind of the whole problem). In the early days of the Republic, these breaks were rare, but now each session might include anywhere between half a dozen and a dozen breaks, some of which can last a while. During the second session of the 108th Congress, for instance, Congress took nine breaks, most of which were about ten days long, but a couple of them lasted over a month, not much shorter than the intersession recess that divided the first and second sessions of the Congress.
    The framers of the Constitution knew that the Senate would not always be in session, and they worried about what might happen to important presidential appointments if the senators who needed to confirm them were back in their home states or vacationing at Niagara Falls or something. Especially because getting from place to place was not nearly as easy as it is these days, when we can just hop on a plane and sit on the runway for six hours before zipping off to our destination, the framers were concerned that the nation might be without a secretary of state or other important official for months at a time. Thus, the recess-appointments clause:
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.
If the Senate is in recess, and the president needs to fill an important post, he can do it without getting Senateconfirmation, although the person appointed to the post can only remain in that position until the end of the session after she takes office (unless the Senate comes back and confirms her). The framers thought that the clause was important, but there’s no evidence that they thought it would be used particularly often. As Alexander Hamilton wrote in
The Federalist Papers,
the recess-appointments clause was meant “to be nothing more than a supplement to the [appointments clause] for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.”
    The framers might not have envisioned that presidents would use the recess-appointments clause a whole lot, but from the very beginning of the Republic, they have. George Washington appointed John Rutledge to be the chief justice of the Supreme Court by using the recess-appointment power. James Madison used the power to appoint John Quincy Adams, among others, as an envoy to negotiate the peace treaty that ended the War of 1812. Abraham Lincoln used the power hundreds of times, as did Andrew Jackson. Modern presidents, too, have relied heavily on the recess-appointment clause. Ronald Reagan made 243 recess appointments. Bill Clinton made 139, once using the clause to appoint the first openly gay ambassador in the nation’s history. George W. Bush used the power to appoint 171 officials, including John Bolton, his unpopular and reportedly insufferable nominee to be ambassador to the United Nations. Bolton, probably one of the only United Nations ambassadors ever to publicly proclaim that “there is no such thing as the United Nations,” stepped down from his position in December 2006 when it became clear that the Senate was not going to confirm him.
    Some recess appointments are uncontroversial. If the secretary of state were to die on the third day of an intersession recess, and the president felt the need to get a new secretaryof state in there before the Senate returned in a month, surely nobody would object. If the same thing happened at the very beginning of a month-long intrasession break, again most likely the president’s decision to unilaterally appoint a new secretary wouldn’t raise many eyebrows. But what if instead the president wants to make an appointment