Rick Santorum Wrong on Recess Appointments

Let's ignore the lady telling Sen. Rick Santorum that President Barack Obama is a Muslim and not a citizen. If tea partiers want to keep ranting birther conspiracy theories they will just repulse ordinary Americans. What I do want to touch upon is Rick Santorum's claims that the recess appointments made by Obama were unconstitutional.

“He uniformly ignores the Constitution,” Santorum said, not correcting the woman on Obama’s religion. “He did this with these appointments over the, quote, recess that was not a recess, and if I was in the United States Senate, I would be drawing the line.”

The Senate took a 20 day recess. Pete Yost of the Huffington Post points that out that "five presidents have made recess appointments during recesses of 14 days or less." President Obama also has legal precedent on his side. United States Court of Appeals for the Eleventh Circuit decision on Evans v. Stephens

The court next found that the Senate break during which the President appointed Judge Pryor constituted a “recess” within the Recess Appointments Clause. The court stated the arguments that Judge Pryor was not appointed during a constitutional recess “are not so strong as to persuade us that the President’s interpretation is incorrect. . . . 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.”

Short answer, if the Senate isn't in session for 14 days then the president has the power to make a recession appointment. Congress cannot say they are not in recess when in actuality they are in recess.


Santorum will say that he is a strict constitutionalist. There is nothing in Article II, Section 2 of the U.S. Constitution that states how long the Senate must be on recess to make a recess appointment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Santorum doesn't know what he is talking about. The sad thing is that he is an attorney.

Side note: Santorum's legal claim to fame was defending the World Wrestling Federation against steroid regulations. Now that is a true less government conservative.