# Recess Appointment A **recess appointment** (Art. II, § 2, cl. 3) lets the President fill a vacancy **without a Senate vote** while the Senate is in recess. The appointee serves until the end of the Senate's *next* session, which can be close to two years. The clause was written for an eighteenth-century Senate that went home for months. It has become a bypass of [[Advice and Consent]] that every modern President has been tempted to use. ## Why it is dormant 1. ***NLRB v. Noel Canning* (2014, 9–0).** The Court held that a recess must last roughly **ten days** or more to count, and that the Senate is in session whenever it says it is, as long as it keeps the ability to act. That struck down three of Obama's NLRB appointments made during a three-day break. 2. **Pro forma sessions.** The Senate never actually takes a qualifying recess. It gavels in and out every three days through every break, so it stays technically in session. Both parties' Senates have done this against Presidents of both parties. ## 2024–2026: the Senate holds its own prerogative Before taking office, Trump demanded that candidates for Senate Majority Leader agree to allow recess appointments. The Republican leader who won, [[John Thune]], kept scheduling pro forma sessions anyway. For the 37-day August 2026 break, the Senate scheduled **11 pro forma sessions through September 10**. MAGA media called it a "mutiny" and a betrayal. It is among the clearest cases of a Republican Senate protecting an institutional power against its own party's President. The same instinct appears in the blue-slip and confirmation-pace fights ([[Confirmation Pipeline]]). ## The last door The one path left has never been used. Article II, § 3 lets the President adjourn Congress himself "in case of disagreement between them, with respect to the time of adjournment." Using it would require the House to pass an adjournment resolution that the Senate refuses. The idea surfaced in November 2024 and has not been tried. Meanwhile the [[Federal Vacancies Reform Act]] and "performing the duties of" delegations do most of the work a recess appointment would. The census director, the OIRA administrator and dozens of other posts have been run that way ([[Office of Information and Regulatory Affairs]]). ## See also - [[Confirmation Pipeline]] · [[Advice and Consent]] · [[Appointments Clause]] - [[NLRB v. Noel Canning]] · [[Federal Vacancies Reform Act]] · [[John Thune]]