The President’s Authority to Make a Recess
Appointment to the National Labor Relations Board
The President may make a recess appointment to the National Labor Relations Board of a person
whose term as a Senate-confirmed member expired during the current recess of the Senate.
August 31, 2001
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
You have asked whether the President may make a recess appointment to the
National Labor Relations Board (“NLRB” or “Board”) of a person whose term as
a Senate-confirmed member expired during the current recess of the Senate. We
believe that the President may make this recess appointment.
Members of the NLRB are appointed to five-year terms by the President, with
the Senate’s advice and consent. 29 U.S.C. § 153(a) (2000). As we understand the
facts, the member in question had been serving under such an appointment for a
term that ended August 27, 2001.
The Constitution provides that “[t]he President shall have Power to fill up all
Vacancies that may happen during the Recess of the Senate, by granting Commis-
sions which shall expire at the End of their next Session.” U.S. Const. art. II, § 2,
cl. 3. Here, the member’s term has expired, and the office he previously occupied
is vacant. And because there is no bar on reappointment and indeed the statute
declares that “[e]ach member of the Board . . . shall be eligible for reappointment,”
29 U.S.C. § 154(a), no question about eligibility to serve is raised by the recess
appointment of someone who has been appointed before.
The Senate, moreover, is in “recess.” It adjourned August 3, 2001, and will
return September 4, 2001. 147 Cong. Rec. 16,196 (2001). “The longstanding view
of the Attorneys General has been that the term ‘recess’ includes intrasession
recesses if they are of substantial length.” Recess Appointments During an
Intrasession Recess, 16 Op. O.L.C. 15 (1992) (“Intrasession Recess Appoint-
ments”). The seminal 1921 opinion by Attorney General Daugherty affirmed the
President’s power to make a recess appointment in an intrasession recess of
twenty-eight days. Executive Power—Recess Appointments, 33 Op. Att’y Gen. 20,
24 (1921). Since then, Presidents have acted on the conclusion that even much
shorter intrasession recesses were sufficiently substantial to allow recess appoint-
ments. See, e.g., Intrasession Recess Appointments, 16 Op. O.L.C. at 16 (discuss-
ing appointments during recesses of fifteen and eighteen days). Although there is
scant judicial authority on the President’s power to make recess appointments
during intrasession recesses, see Gould v. United States, 19 Ct. Cl. 593, 595 (1884)
(accepting such an appointment), the Executive Branch precedents establish that
the current recess of thirty-two days could amply support a recess appointment.
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President’s Authority to Make Recess Appointment to NLRB
Finally, the Pay Act, 5 U.S.C. § 5503 (2000), by which Congress has sought to
bar the pay of recess appointees in some circumstances, would not apply here.
Because the statute applies only “if the vacancy existed while the Senate was in
session,” id. § 5503(a), it does not reach a vacancy that first arises during a recess
and is filled before the Senate returns. See Memorandum for the Attorney General,
from John O. McGinnis, Deputy Assistant Attorney General, Office of Legal
Counsel, Re: Recess Appointments at 7-8 (July 7, 1988); Memorandum for the
Attorney General, from Ralph E. Erickson, Acting Assistant Attorney General,
Office of Legal Counsel, Re: Recess Appointments at 3 (Dec. 21, 1971).
DANIEL L. KOFFSKY
Acting Assistant Attorney General
Office of Legal Counsel
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