A Quick Guide to Presidential Recess Appointments
January 15, 2025
Key Takeaways:
- We are closely monitoring President-elect Donald Trump’s regulatory agenda and the process for installing the appointees who will set the tone for rulemaking, policy changes, and governing for the next four years.
- President-elect Trump signaled he wants to use the president’s recess appointment powers to install high-level appointees with doubtful confirmation prospects.
- The recess appointment clause in Article II of the U.S. Constitution grants the president the power to make appointments during a recess without a Senate vote.
- However, recess appointment authority is not absolute, and this power has been limited recently due to legal precedent and congressional procedural rules.
Key Contact:
Government Relations Director and Counsel
Point of Difference Strategies/Croke Fairchild Duarte & Beres
As President-elect Donald Trump’s inauguration approaches and he continues to announce his senior executive branch appointees, he has signaled his willingness to use a procedure known as the recess appointment to sidestep the Senate confirmation process.
The recess appointment would allow Trump to skip the Senate’s confirmation process — which consists of a hearing, committee vote, then full floor vote for officials such as cabinet secretaries, senior sub-cabinet officials, ambassadors, and U.S. Supreme Court justices — to install his appointees.
The President-elect has expressed frustration with the pace of Senate confirmations during his first term. And with a new slate of appointees, including some who have been controversial or called inexperienced, we will continue to watch if Trump advocates for his authority to make recess appointments.
What is a recess appointment and how does it work?
The Constitution delegates authority to the U.S. Senate to provide “advice and consent” to the president’s nominees by voting for or against their confirmation. The Senate’s “advice and consent” authority is a check on the president’s executive appointment powers. However, the recess appointment clause in Article II of the U.S. Constitution grants the president the power to make appointments while the Senate is recessed.
The Senate stands in recess when it takes a break for a period of time, typically within the same day, overnight, or for a period of days. Historically, when Congress stood in recess for longer periods of time, the president used recess appointments to fill important vacancies.
Former Democratic and Republican presidential administrations have used recess appointments, but their use was limited in the first Trump and Biden presidential terms. Supreme Court precedent and Congressional gamesmanship make recess appointments difficult for a president whose party does not have a majority in both chambers of Congress.
A 2014 Supreme Court ruling held the Senate must recess or adjourn for 10 days before a president can make recess appointments[i]. And the Senate tactically uses “pro-forma” sessions where, during long breaks, Senators take turns gaveling in and out to open and close the chamber to avoid recessing or adjourning. The House of Representatives must also approve Senate breaks longer than three days. The president also has the power to force an adjournment long enough to make recess appointments if there is a disagreement between the Senate and the House on when to adjourn. However, to date, this power has never been used.
Republicans currently have majorities in the Senate and the House of Representatives. With buy-in from both chambers, Congress could grant Trump the opening he needs to make recess appointments. However, the Senate would have to weigh whether it is willing to give up one of its core constitutional duties: approving the president’s executive appointments.
Why is the recess appointment power important to Trump?
President-elect Trump’s campaign statements, senior staff announcements, and previous regulatory record suggest he wants to implement a fast and aggressive regulatory agenda — which likely includes rescinding Biden-era Executive Orders, fast-tracking environmental review for infrastructure and energy permitting, and subjecting independent agencies to the wider interagency review process.
To enact his regulatory agenda, Trump will need to install supporters in key agency positions to usher his regulatory agenda forward. And a number of Trump’s senior picks have already either faced strong opposition for their government inexperience or withdrawn because of their doubtful confirmation prospects. The President-elect has also expressed frustration about the pace of his confirmations in his previous administration. The recess appointment could be a solution if Congress wants to play ball. The Senate confirmation process was enshrined in the Constitution to ensure officials have the expertise and impartiality to serve the nation. Bypassing the process to install officials with doubtful confirmation prospects will alter norms that have spanned Republican and Democratic administrations.
The Senate will begin taking up the President-elect’s picks soon, and we will see if they provide any openings for Trump to use his recess appointment powers as a vehicle to install picks with uncertain prospects or appoint senior officials who face prolonged confirmation proceedings. President-elect Trump’s appointees will be key in setting the tone for what rulemaking, policy changes, and governing will look like for the next four years.
We are closely monitoring President-elect Trump’s regulatory agenda and who will be staffing his key agencies. Please contact one of our professionals with any questions.
[i] NLRB v. Canning, 573 U.S. 513 (2014).