The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause. And we do not set the limit today. Although a President has not before appointed a judge to an Article III court during an intrasession recess as short as the one in this case, appointments to other offices -- offices ordinarily requiring Senate confirmation -- have been made during intrasession recesses of about this length or shorter.8 Furthermore, several times in the past, fairly short intrasession recesses have given rise to presidential appointments of judges to Article III courts.9
Twelve Presidents have made more than 285 intrasession recess appointments of persons to offices that ordinarily require consent of the Senate. So, given the words of the Constitution and the history, we are unpersuaded by the argument that the recess appointment power may only be used in an intersession recess, but not an intrasession recess. Furthermore, what we understand to be the main purpose of the Recess Appointments Clause -- to enable the President to fill vacancies to assure the proper functioning of our government -- supports reading both intrasession recesses and intersession recesses as within the correct scope of the Clause.