Analysis: Recess Commissions (Article II, Section 2, Clause 3)

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In late 2010, comprehensive analysis of the presidential succession process was circulated, and it included analysis of the U.S. Constitution's officer assignment processes (i.e., U.S. Const., art. II, § 2).  In relation to the aforementioned analysis, a number of lawsuits were filed the next year that challenged the President of the United States' constitutional authority to use the so-called Recess Appointments Clause (U.S. Const., art. II, § 2, cl. 3) during what has been heretofore called a Senate "pro-forma" session, with the U.S. Supreme Court accepted one such lawsuit, National Labor Relations Board v. Noel Canning (NLRB v. Noel Canning Doc #12-1281), onto its docket the following year.  The Executive Branch [incorrectly] justified its decision to use the so-called Recess Appointments Clause via a memo (i.e., "Lawfulness of Recess Appointments during a Recess of the Senate notwithstanding Periodic Pro Forma Sessions") authored by Ms. Virginia Seitz, Assistant AG at the Office of Legal Counsel (OLC), U.S. Justice Department on 06 January 2012. 

Per Article II, Section 2 of the Constitution (i.e., the officer assignment processes), all Officers of the United States must be either appointed to their office via the Appointments Clause (U.S. Const., art. II, § 2, cl. 2) or temporarily commissioned to their office via the Recess Commissions Clause (U.S. Const., art. II, § 2, cl. 3), commonly and incorrectly referred to as the so-called Recess Appointments Clause, so-called because the Constitution actually refers to the Article II, Section 2, Clause 3 officer assignment process as a recess commission and not as an appointment so as to differentiate it from an actual Article II, Section 2, Clause 2 Officer appointment.  The correct and proper clause name for Article II, Section 2, Clause 3 of the Constitution is Recess Commissions Clause.  Continuing, when the Senate is not available to fulfill its constitutional mandate under the Appointments Clause, the President has the option to employ the Recess Commissions Clause.  But, only if the Senate is in recess, and an applicable vacancy thus occurs.  Of course, differing interpretations exist between the Legislative and Executive branches as to when the Senate is in recess and which vacancies can be filled by a recess commission.  Additionally, there are many more misconceptions relative to the Article II, Section 2 officer assignment processes.

As a result, analysis is required of all applicable sections of the Constitution to correctly ascertain when the two different officer assignment processes can be used.

An extensive analysis of the overall Article II, Section 2 officer assignment processes was performed and documented in an essay on presidential successors (Presidential Successors—Entitled Successors, 01 October 2010), which also addresses exactly when an Article II, Section 2 Officer vacancy can be filled via the Recess Commissions Clause (U.S. Const., art. II, § 2, cl. 3), what is commonly and incorrectly referred to as the so-called Recess Appointments Clause.