What Are Recess Appointments, and Will President-Elect Trump Bring Them Back?

There has been a great deal of recent speculation about whether President-elect Donald Trump will attempt to sidestep the Senate confirmations process and place some of his nominees for cabinet positions and other key administrative posts through recess appointments. While the President-elect is very forthcoming about his desires to see his nominees confirmed by the Senate as quickly as possible, the use of recess appointments would be extraordinary. The President-elect will seek to use his second and final term in the White House to accomplish his vision for the country, and the dynamics shown in the coming weeks will be instructive in understanding how the President-elect will use his executive power to manage the Republican party and its agenda.

Recess Appointments Under the Trump Administration

Recess appointments, once a source of significant executive power and a flashpoint in presidential-Congressional relations, have all but vanished from modern politics. Since the Supreme Court’s 2014 Noel Canning v. NLRB decision,¹ the Senate’s strategic use of pro forma sessions have blocked Presidents Barack Obama, Donald Trump, and Joe Biden from the conditions needed to make recess appointments. President-elect Donald Trump reignited this constitutional debate, calling on candidates for Senate Republican leadership to embrace recess appointments, stating “Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner.”

President-elect Trump’s comments, issued just days before Senate Republicans selected Senator John Thune (R-SD) as their next leader, illustrate the continued tension between the legislative and executive branches. Was this an attempt to exert the President-elect’s influence on Republican members of Congress, or does it actually signal a plan to use recess appointments to fill political positions critical to his administration’s agenda? With Republicans set to control both chambers of Congress, it is possible the legislative branch could lift its procedural barriers, enabling President-elect Trump to fully wield this dormant presidential authority. If successful, President-elect Trump’s push to restore recess appointments could mark a pivotal moment in tipping the balance of power between the executive and legislative branches.

Background on Recess Appointments

The Recess Appointments Clause of Article II of the Constitution grants the president the authority to temporarily fill vacancies without Senate approval during recesses.² Former Presidents Bill Clinton and George W. Bush frequently utilized this power, making 139 and 171 recess appointments, respectively. Former President Barack Obama made 32 recess appointments before the Noel Canning decision was issued. After that, beginning in the 110th Congress, the practice was dramatically curtailed when the Senate started using pro forma sessions to break up long recesses and effectively prevent recess appointments. In January 2012, President Obama made four recess appointments during a three-day recess that were challenged as unconstitutional, with plaintiffs arguing the Senate had not been absent long enough to legally be in recess. Under Noel Canning, the Supreme Court held that three of the appointments made during the three-day recess were invalid.

In particular, the Supreme Court upheld the president’s authority to make recess appointments during both intra-session (the time Congress is out of Washington, D.C. during the normal course of the year) and inter-session recesses (the time Congress has adjourned between the end of one Congress and the beginning of a new Congress), provided the recess periods last at least 10 days.³ However, the ruling also empowered Congress to block such appointments entirely through the use of pro forma sessions — brief meetings designed to prevent a formal recess. This interpretation provided Congress with the ability to prevent any recess appointments, significantly limiting the president’s ability to bypass the Senate confirmations process.

The Supreme Court’s decision has since turned the Recess Appointments Clause into a dormant constitutional power, leaving prolonged vacancies unfilled and underscoring the growing tension between the executive and legislative branches over the Senate confirmations process.

President-Elect Trump’s Renewed Focus

President-elect Trump’s push for recess appointments may reflect his desire to expedite the installation of his appointees in the face of increasing confirmation delays. Data from the Center for Presidential Transition shows that nominees submitted by President Biden during his first year waited, on average, more than 100 days for confirmation — nearly three times longer than those submitted during former President Ronald Reagan’s first year. In comparison, President-elect Trump’s initial cabinet nominees during his first administration faced an average wait of almost 25 days, with only his Secretaries of Defense and Homeland Security confirmed on Inauguration Day. Meanwhile, former President Obama’s initial cabinet nominees waited an average of less than six days for confirmation, with six of his cabinet members confirmed on Inauguration Day.

Some commentators suggest that President-elect Trump could use recess appointments to install nominees who might not otherwise be confirmed due to the lack of support by a majority of the Senate. Such a strategy has its limitations. According to Article II, Section 3 of the Constitution, recess appointments are temporary, expiring at the end of the “next session” of Congress following the appointment.⁴ Each session of Congress is one year in duration.

For example, a person appointed during the first session of the 119th Congress (calendar year 2025) or the recess between the first and second sessions would serve until the end of the second session of the 119th Congress (January 2027). Similarly, a person who is appointed during the 119th Congress’ second session (calendar year 2026) would serve until the end of the first session of the 120th Congress (December 2027). The Federal Vacancies Reform Act, which allows the president to temporarily fill vacancies with acting officers during the confirmation process, can also be used to extend recess appointments by up to 210 days.⁵ Furthermore, limitations frequently included in Congressional appropriations measures can limit the ability of such appointees to be paid, if the Senate considers and rejects the nomination of such an appointee.⁶

Historically, many individuals given recess appointments were later confirmed to their positions. For instance, former President Obama made 32 recess appointments, and nominated each appointee to the same position. Of these, 20 were ultimately confirmed by the Senate, while the nominations of the remaining 12 were either returned to, or withdrawn by, the former President.

Recess Appointment Risks

The U.S. system of separated powers requires the president to submit his nominees for certain senior government roles to the Senate for approval. This system of checks and balances helps ensure qualified individuals serve in the most senior roles of the administration. Enabling recess appointments would risk a president abusing the authority to install unqualified candidates to senior positions. With Republicans in control of the Senate, the Senate will be able to hold hearings on President-elect Trump’s intended nominees between the first day of the 119th Congress (January 3) and Inauguration Day on January 20. This should allow President-elect Trump’s cabinet nominees to be vetted through the normal Senate confirmation process quickly without the need for recess appointments.

What to Expect from the Senate

Shortly before the Senate leadership elections, newly-elected Senate Majority Leader John Thune (R-SD) said that “all options are on the table,” including recess appointments, to ensure President-elect Trump’s nominees are installed as quickly as possible. Since becoming the Senate Majority Leader, Senator Thune expressed hope that recess appointments will not be necessary, warning that the outcome will depend on Senate Democrats confirming President-elect Trump’s nominees in a timely manner.

With some Republican Senators declining to express support for some of President-elect Trump’s nominees, it may be difficult for Sen. Thune to secure enough votes to place the Senate into recess if Senate Democrats slow down the confirmation process. As the Senate Majority Leader, Sen. Thune controls the Senate schedule for the year, including determining when the chamber will go into a pro forma session. He could potentially schedule a recess longer than 10 days in early in the year, or cancel pro forma sessions during a longer recess. For example, Congress typically takes a week-long recess over Presidents Day in February and a two-week recess for Passover and Easter. The Passover and Easter recess in April may be a particularly attractive target for Sen. Thune because he can use the potential of formal recess on those dates to prod Senate Democrats into reducing the number of procedural hurdles they use to impede Senate confirmation of President-elect Trump’s nominees. The Senate schedule for 2025, which we expect to be released in mid- to late-December, may provide further insight into Sen. Thune’s plans.

What to Expect from the House

Much of the control of the confirmation process of nominees to lead cabinet agencies and other presidential appointments is within the Senate. However, Article I, Section 5 of the Constitution requires both the House and Senate to consent to recesses longer than three days.⁷ Therefore, the House has the power to object to the Senate’s attempt to adjourn for more than three days creating the opportunity for a recess appointment to occur. However, it is incredibly unlikely that House Speaker Mike Johnson (R-LA), a close ally of President-elect Trump, would block a Senate recess that would enable recess appointments.

There is also speculation that President-elect Trump might invoke Article II, Section 3 of the Constitution to force Congress into a recess. This provision, which has never before been used, allows the president to adjourn Congress “in case of disagreement” between the House and Senate over the timing of adjournment.

Under this scenario, the House could pass a concurrent resolution to adjourn for more than 10 days. If the Senate adopts the concurrent resolution, it would create a recess period long enough to install recess appointments. If the Senate does not agree, President-elect Trump could potentially use his Article II authority to adjourn Congress for more than 10 days, achieving the same result. While President-elect Trump threatened to invoke this power during his first term, he ultimately refrained from doing so. Using this power for the first time would lead to inevitable legal challenges of any recess appointment and would also allow new legal challenges of any regulatory decisions made by such an appointee. It could also potentially strain the President-elect’s relationship with some members of his party in Congress.

Conclusion

In the coming months, President-elect Trump’s push to revive the recess appointments process may test the limits of executive authority and the Senate’s willingness to adapt longstanding procedures. While the legal and procedural barriers established by the Noel Canning decision and pro forma sessions remain significant, the alignment of a Republican-controlled Congress with President-elect Trump could shift the balance. If Sen. Thune strategically adjusts the legislative calendar and House Speaker Johnson backs prolonged recesses, the President-elect may successfully sidestep Senate delays to install key appointees.

This approach carries risks — recess appointments are inherently temporary and could limit the administration’s ability to retain officials in critical positions. Moreover, efforts to bypass the traditional confirmation process may deepen partisan divides and further strain the relationship between the executive and legislative branches.

Ultimately, whether President-elect Trump’s push for recess appointments represents a practical strategy to overcome legislative gridlock or a symbolic assertion of renewed presidential power will depend on the political dynamics of the new Congress. President-elect Trump wants his nominees to get a fair and swift confirmation process at a pace similar to historic precedents, and if he has to rattle the controversial recess appointment saber to get that, he may be willing to do so. If successful, this effort could mark a turning point in the modern use of recess appointments, reshaping their role in the broader struggle between the presidency and Congress over federal appointments and confirmations.

© Arnold & Porter Kaye Scholer LLP 2024 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.