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March 28th, 2014

Table of Cited Authorities:

United States Constitution, Justice.gov (pro-forma-sessions-opinion), Harlan Institue


Statement of Argument: The President of the United States has the power to make appointments without congressional approval through recess appointments, making the appointment when the senate is in recess. The President can fill any vacancies he or she wants when the Senate is in recess, whether the vacancies occur before or during the recess. The President, however; cannot make recess appointments during the Senate’s pro forma sessions as the senate in not in a true recess and is meeting frequently.

Argument: The President under the Constitution has the power to make appointments that do not require senate approval when the Senate is in recess. This, however; raises the question when exactly is the Senate in recess, especially today with the current technology and the ease of communication between its members. The Constitution says “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.” It is clearly stated that the President may make an appointment, when the Senate is in recess, this means that small breaks or minor recesses do not count as an acceptable time to make an appointment. When the Senate meets and plans to have continuous secessions, the time between the physical meeting and debating is not a recess. There must be breaks in between Senate meeting, the US senate cannot be in session for hours and hours, having periods of time off makes sense; and the President will not be able to make appointments during these short times off.  If the Senate is no longer meeting and holding secession then the President is free to fill as many vacancies as her or she wishes. The DC court said the President may make an appointment between sessions but not during  a mid-session break, or intra-session recess.


All vacancies that exist during a recess can be filled by the president, he or she is not limited to making appointments to fill vacancies that occurred at the start of that specific recess although the DC district court said the President is limited the decision cannot be enforced. Having a vacancy means that there is the court or agency is missing a key person in a leadership position.  A vacancy is the opening needs to be filled sooner rather than later, the time of the start of the vacancy is irrelevant and the President can fill the spot at any time during a recess, because he or she cannot be stopped from doing so.


The fact over whether the President can make recess appointments during a pro forma sessions is widely disputed. the Department of Justice Office of Legal Counsel, a very powerful agency that acts as a legal aid to the president, believe that the pro forma session are in fact a period of recess. The Office of Legal Counsel stated “  “the convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a “Recess of the Senate” under the Recess Appointments Clause. In this context, the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.” Many disagree with this statement from the Office of Legal Counsel, arguing that the senate very much in session during pro forma sessions and the President lacks the power to make a recess appointment at that time.