                       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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