The Recess Appointments Clause of the U.S. Constitution states that, “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.” This ensures that the government is still working when the Senate is not in session. When the Senate is not in session, they are clearly unable to give consent to the President about a nomination. If this was the case, then the government would not be able to operate in this way while the Senate was gone and no nominations or appointments would be made. Vacant positions in our government need to be addressed as soon as possible, and waiting for the Senate to be in session could take too long. This opinion was followed by both Alexander Hamilton, in Federalist No. 67, and by Archibald Maclaine during the ratification of North Carolina. This has come up currently in the case National Labor Relations Board v. Noel Canning Corporation, where the NLBR would not have been able to operate without at least three members, which the Senate at the time was attempting to stop by not appointing more than the already existing two out of five members.

The Constitution clearly states in Article. II, § 2, cl.3 that the President of the United States has the power to appoint officials while Congress is not in session. If the Constitution is the highest law in the land, which it is, than there is no way to argue this. The Constitution, rather than party struggles, should dictate how the government is run. The discussion and debate that goes on between our Democratic and Republican parties is meant to slow down government, and promote the overall needs of the public. It was not meant to shut down a whole board because we happen to have a divided government. These presidential recess appointments allow for our government to continue operating smoothly even when divided and are granted explicitly in Article 2, section 2 of The Constitution; however, these recess appointments need to be defined with more clarity, as to avoid executive overreach, and continue upholding our system of checks and balances.

When discussing the regulation of these executive recess appointments, it is important to consider when the president is choosing to fill vacancies. If a vacancy arises while Congress in session, the president should go to Congress for approval. Even if a vacancy arises while Congress is in session, and then it goes out of session, the president should have to bring new appointments to Congress. This would prevent any avoidance this important check that the legislative has on the executive. If the president could fill vacancies himself, that arose when Congress is in session, he would essentially have unlimited power to wait for a recess and appoint whom he wanted.This would effectively ruin the idea of checks and balances, an idea that the founders fought hard for and has become an essential pillar of American democracy. This would go against the fundamental idea of “advice and consent,” which has prevailed from the revolution, to modern day. This restriction on the president is an idea that follows the decisions of the D.C. Circuit Court of Appeals, who agreed that the president could only fill positions that arose in recess.

It is a difficult task to decide whether or not the President’s recess-appointment power should be exercised when the Senate is convening every three days in pro-forma sessions due to the ambiguity within the Constitution’s definition of a recess. There are different types of recesses, which make it challenging to figure out when recess appointments should be used constitutionally. There are intrasession and intersession recesses, which take place both during and in-between sessions of Congress. Although intrasession recesses are sometimes deemed controversial by parts of the Senate due to their sometimes-long duration, these recesses are less vague than pro forma sessions. During pro forma sessions he only business conducted is a simple call to order, often by a single senator. This is extremely controversial due to the fact that the senators are only there for a few minutes. Although this is technically considered a session they are not accomplishing anything, which could potentially be detrimental to our government, especially if these “sessions” are taking place every three days. We need to have an active Congress in order to keep up our legislation with our current day society because it’s constantly changing. Pro forma sessions are hindering the ability of Congress to effectively produce new laws and legislation, and therefore leading the president to overstep his executive authority in recess appointments.

Although there needs to be restrictions placed on the president’s recess appointment power to prevent executive overreach, in the case of National Labor Relations Board v. Noel Canning Corporation, the president used his powers both constitutionally and effectively. This use of his executive power allowed the government to run more efficiently, and uphold an important branch, even when Congress tried to shut it down.