Can the President Make Successive Recess Appointments to the Same Position?
The President may make successive recess appointments of the same or a different individual to a position. Payment from the Treasury to the appointee may be limited, however, under 5 U.S.C. 5503. (See also above, “Are there any legal constraints on the President’s recess appointment power?”) Subsection 5503(a) provides, in part, that: Payment for services may not be made from the Treasury of the United States to an individual appointed during a recess of the Senate to fill a vacancy in an existing office, if the vacancy existed while the Senate was in session and was by law required to be filled by and with the advice and consent of the Senate, until the appointee has been confirmed by the Senate. The provision allows three exemptions to this pay prohibition, two of which would not apply in this situation. Under the remaining exemption, “if, at the end of the session, a nomination for the office, other than the nomination of an individual appointed during the preceding recess of the Senate, was pending before the Senate for its advice and consent,” the prohibition would not apply.11 The clause “other than the nomination of an individual appointed during the preceding recess of the Senate” probably would prevent payment in the case of most successive recess appointments. This interpretation has been supported by the Office of Legal Counsel (OLC), Department of Justice, which stated in 1991, “Although its language is far from clear, section 5503(a) has been interpreted as prohibiting the payment of compensation to successive recess appointees.”12
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