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The Law: Can the President Recess Appoint a Vice President?

Authors

  • ROY E. BROWNELL II


  • AUTHOR'S NOTE: I would like to thank Louis Fisher, Joel Goldstein, John Feerick, Don Wallace, Jr., Harold Relyea, Mort Rosenberg, Mitch Sollenberger, Fred Karem, Seth Barrett Tillman, Russell Coleman and Josiah Brownell for their helpful comments and Kathy Reinke for her word processing assistance. The opinions expressed herein and any errors are the author's alone.

Roy E. Brownell II, a counsel in the U.S. Senate, has contributed to several books, including the Encyclopedia of the American Presidency. Among his recent publication is “Vice Presidential Secrecy,” which appeared in the St. John's Law Review.

Abstract

If a vice president dies, resigns, is removed, or his position is otherwise vacated, and if Congress is out of session, does the president have the authority to fill the vacancy through a recess appointment, or is his only means of installing a new vice president through the bicameral confirmation process under the Twenty-Fifth Amendment? This article evaluates this novel constitutional question, which is important in light of the vice presidency's increased prominence in recent years, the expansion of presidential recess appointment power over the course of the nation's history, and the greater frequency with which presidents have carried out these unilateral actions in past decades. While arguments in favor of the president cannot be dismissed out of hand, ultimately it must be concluded that he lacks such power.

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