Advice and Consent and the Recess Appointment

Today’s post comes from Christine Blackerby, an Outreach Specialist at the Center for Legislative Archives at the National Archives in Washington, DC.

President George Washington’s message to the Senate regarding recess appointments, February 9, 1790. (Records of the U.S. Senate, National Archives)

President George Washington’s message to the Senate regarding recess appointments, February 9, 1790. (Records of the U.S. Senate, National Archives)

Two hundred and twenty-five years ago on January 4, 1790, the First Congress returned from a break after a very productive first session.

Shortly afterward, the Senate received notice from President George Washington that he had made appointments in their absence—the first-ever Presidential recess appointments came during the very first congressional recess.

When Congress is in session, the President’s nominees must receive the “advice and consent” of the Senate before they are appointed to public office. But Article II, Section 2, of the Constitution also states:

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.

The Founders intended for these recess appointments to ensure that the work of government could continue even when an office holder resigned or died when the Senate was not in session. These appointments allowed the President to temporarily place someone in office until the Senate had the chance to weigh in.

In the early years of the Republic, this happened frequently as Congress was usually in session for less than half the year. On February 9, 1790, President Washington sent a message to the Senate about his recess appointments. In it, he noted the Constitution allowed for temporary appointments.

President George Washington’s message to the Senate regarding recess appointments, February 9, 1790. (Records of the U.S. Senate, National Archives)

President George Washington’s message to the Senate regarding recess appointments, February 9, 1790. (Records of the U.S. Senate, National Archives)

In a chart, he then listed the titles of vacant positions and the names of those to whom he had given temporary appointments. He also included the names of those he nominated to the positions for a full term—the nominees were all the same people who had received the recess appointments.

Washington and subsequent Presidents frequently used recess appointments to keep the government running. Most of these appointments received perfunctory approval by the Senate. One notable exception was an incident during President Andrew Jackson’s administration.

Jackson had a rather tumultuous relationship with the Senate. The Senate had rejected a significant number of Jackson’s nominees from the beginning of his Presidency in 1829. In 1831, following Jackson’s disagreements with Vice President John C. Calhoun and a political scandal, Jackson’s entire cabinet, except one official, resigned.

The first to resign was Jackson’s close confidant—Secretary of State Martin Van Buren. Jackson wanted to keep Van Buren in his administration, so he gave Van Buren a recess appointment to be Minister (ambassador) to Great Britain. Jackson was confident that Van Buren would be confirmed by the Senate, and Van Buren sailed for England.

Senate roll call vote on Martin Van Buren’s nomination for Minister to Great Britain, January 25, 1832. (Records of the U.S. Senate, National Archives)

Senate roll call vote on Martin Van Buren’s nomination  to be Minister to Great Britain, January 25, 1832. (Records of the U.S. Senate, National Archives)

When the Senate convened and voted in January 1832, Van Buren’s nomination was rejected by a vote of 23 to 24. Vice President Calhoun, who was acting in his constitutional role as President of the Senate, cast the tie-breaking vote against the nomination.

Jackson was incensed to learn his own Vice President had killed the nomination.In response, Jackson dropped Calhoun from his ticket for the 1832 Presidential election and replaced him with Van Buren.

Jackson and Van Buren went on to win that election, and Van Buren was later elected to succeed Jackson to the Presidency. Calhoun saw his national stature and Presidential chances diminish as a consequence of his vote against confirming Van Buren’s recess appointment.

In more modern times, the President’s use of recess appointments has become more controversial, as Congress is now in session most of the year, with short breaks.

The recent ruling in National Labor Relations Board v. Noel Canning, a Supreme Court case decided in June 2014, was the first time the Court has ever been called on to rule on the interpretation of the recess appointments clause.

In it, the court ruled that the recess appointments clause authorizes the President to fill any existing vacancy during any recess. But, they also ruled that the Senate is in session whenever it indicates that it is, as long as it retains the capacity to transact its business.

The Center for Legislative Archives is marking the 225th anniversary of the First Congress by sharing documents on Tumblr and Twitter; use #Congress225 to see all the postings.

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