Congressional Materials on Recess Appointments

Set forth below are congressional materials related to recess appointments in the following categories: (1) Congressional debates and Reports; (2) Congressional hearings; (3) the Draft Senate amicus brief in Mackie v. Clinton; (4) CRS reports and (5) Comptroller General opinions

Congressional Debates and Reports

 1814 Senate Debate regarding Senator Gore’s resolution that the President lacks the constitutional power to make recess appointments to “any office not before full” (For discussion see here)

1822 Senate Committee on Military Affairs report concluding that President cannot fill original vacancies under the RAC (For discussion see here)

1863 Senate Judiciary Committee report concluding that the President can only fill vacancies that arise or occur during a recess (For discussion see here)

1905 Senate Judiciary Committee report objecting to President Theodore Roosevelt’s recess appointments during a “constructive recess” (For discussion see here)


Congressional Hearings

 “Executive Overreach: The President’s Unprecedented ‘Recess’ Appointments,”, Hearing before the House Committee on the Judiciary (Feb. 15, 2012)


The Honorable Charles Cooper

John Elwood, Esq.

Professor Jonathan Turley


“The NLRB Recess Appointments: Implications for America’s Workers and Employers,”, Hearing before the House Committee on Education and the Workforce (Feb. 7, 2012)


The Honorable Charles Cooper

Dennis Devaney

Stefan Marculewicz

Susan Davis


“Uncharted Territory: What are the Consequences of President Obama’s Unprecedented ‘Recess’ Appointments?,” Hearing before the House Committee on Oversight and Government Reform (Feb. 1, 2012)


The Honorable Mike Lee

The Honorable C. Boyden Gray

Andrew Pincus, Esq.

Professor Michael Gerhardt

David Rifkin, Esq.

Mark Carter, Esq.

Draft Senate Amicus Brief in Mackie v. Clinton (1993)

This brief, prepared by Senate Legal Counsel at the request of Senate Majority Leader George Mitchell, argued that the President could only make recess appointments following adjournments sine die. It also stated that if the term “recess” was interpreted to include any non-final adjournment, “then ‘session’ would need to be interpreted consistently as referring to only the reciprocal period, when the Senate is continuously sitting, before taking its next brief ‘recess.’”

The brief was not filed due to objections from Senate Republicans, but Senator Mitchell entered it into the Congressional Record on July 1, 1993.


CRS Reports

Certain Questions Related to Pro Forma Sessions of the Senate (Mar. 8, 2012) (Christopher Davis) )(for discussion see here)

Recess Appointments Made by President Barack Obama (Jan. 26, 2012) (Henry Hogue and Maureen Bearden)

President Obama’s January 4, 2012 Recess Appointments: Legal Issues (Jan. 23, 2012) (David Carpenter, Vivian Chu, Alissa Dolan and Todd Garvey)

Recess Appointments: Frequently Asked Questions (Jan. 9, 2012) (Henry Hogue)

Recess Appointments: A Legal Overview (Jan. 6, 2012) (Vivian Chu)

Recess Appointments Made by President George W. Bush (Nov. 3, 2008) (Henry Hogue)

Federal Recess Judges (Feb. 2, 2005) (Lou Fisher)


Comptroller General Opinions

Letter Opinion to Senators Dodd, Kerry and Casey re “Recess Appointment of Sam Fox” (June 8, 2007) (addresses question of whether a recess appointee who cannot be paid under the Pay Act may still serve

Letter Opinion to Senator Chris Dodd regarding “Duration of Recess Appointments” (Aug. 14, 2002)

Comptroller General Opinion B-77963, “Appointments- Recess Appointments,” (Aug. 26, 1948) (Comptroller General Warren)

Comptroller General Opinion B-77908, “Appointments- Recess Appointments” (July 16, 1948) (Comptroller General Warren)

For discussion of the 1948 Warren opinions and the concept of “intrasession” recess appointments, see here, here, here, here and here







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