Recess Appointments

Recess Appointments (Presidential Duties and Powers)

The Recess Appointments Clause was adopted by the Constitutional Convention without dissent and without debate regarding the intent and scope of its terms. In Federalist No. 67, Alexander Hamilton refers to the recess appointment power as “nothing more than a supplement . . . for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.” It is generally accepted that the clause was designed to enable the President to ensure the unfettered operation of the government during periods when the Senate was not in session and therefore unable to perform its advice and consent function. In addition to fostering administrative continuity, Presidents have exercised authority under the Recess Appointments Clause for political purposes, appointing officials who might have difficulty securing Senate confirmation.

More about Recess Appointments

Two fundamental textual issues adhere to any consideration of the Recess Appointments Clause. The first is what constitutes a vacancy “that may happen during the Recess of the Senate.” If the word “happen” is interpreted to refer only to vacancies that occur during a recess, then the President would lack authority to make a recess appointment to a vacancy that existed prior to the recess. If, however, “happen” is construed more broadly to encompass all vacancies that exist during a recess, then the President would be empowered to make a recess appointment to any vacant position, irrespective of whether the position became vacant prior to or during a recess. Although this issue was a source of controversy in the late 18th and early 19th centuries, a long line of Attorney General opinions and judicial decisions have adopted the broader interpretation of the clause. Attorney General William Wirt, serving under President Monroe, concluded that the phrase encompassed all vacancies that happen to exist during a recess, declaring that “[t]his seems to me the only construction of the Constitution which is compatible with its spirit, reason, and purpose.” 1 This interpretation was first adopted by a federal court in 1880 in In re Farrow,2 and has been followed in judicial opinions on the issue ever since.3

Recess Appointments: Developments

The second fundamental textual issue that adheres to any consideration of the Recess Appointments Clause is the meaning of the phrase “the Recess of the Senate.” An opinion issued by Attorney General Knox in 1901 concluded that the phrase applied only to adjournments between sessions of Congress (commonly referred to as “intersession” recesses). In reaching this determination, Knox placed significant weight on the use of the definite article “the” in the Recess Appointments Clause. He further concluded that, if recess appointments were allowed during periods other than an intersession recess, nothing would prevent an appointment from being made “during any adjournment, as from Thursday or Friday until the following Monday.” This position was abandoned in 1921 in an opinion issued by Attorney General Daugherty that declared that an appointment made during a 29-day recess was constitutional. Daugherty's opinion focused on the practical aspects of the recess appointment dynamic, stating that, “[i]f the President's power of appointment is to be defeated because the Senate takes an adjournment to a specified date, the painful and inevitable result will be measurably to prevent the exercise of governmental functions.” 4 Further emphasizing this functional approach, Daugherty's opinion rejected the notion that this broader interpretation would authorize intrasession appointments during brief adjournments, declaring that “an adjournment for 5 or even 10 days can [not] be said to constitute the recess intended by the Constitution.” 5 The opinion concluded by emphasizing that, although “[e]very presumption is to be indulged in favor of the validity of whatever action [the President] may take . . . , there is a point, necessarily hard of definition, where palpable abuse of discretion might subject his appointment to review.” 6 Subsequent Attorney General and Department of Justice Office of Legal Counsel opinions have continued to support the constitutionality of intrasession recess appointments, with more recent pronouncements on the issue asserting that the clause encompasses all recesses in excess of three days.7

Other Aspects

Thus, a Senate “recess” does not include holidays, or very brief temporary adjournments,8 while, by an act of Congress, if the vacancy existed when the Senate was in session, the ad interim appointee, subject to certain exceptions, may receive no salary until he has been confirmed by the Senate.9 This and other provisions governing recess appointments are designed to protect the Senate's advice and consent function by confining the recess appointment power of the President. By targeting the compensation of appointees as opposed to the President's recess appointment power itself, these limitations act as indirect controls on recess appointments, and their constitutionality has not been adjudicated. A federal district court noted that “if any and all restrictions on the President's recess appointment power, however limited, are prohibited by the Constitution, 5 U.S.C. § 5503 . . . might . . . be invalid.” 10 Additional constitutional concerns might arise from the application of these provisions to judicial recess appointees.11

Resources

References

This text about Recess Appointments is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

Notes

[Footnote 1] 1 Op. Att'y Gen. 631, 633-34 (1823). Subsequent Attorney General opinions that concurred include 2:525 (1832), 3:673 (1841), 4:523 (1846), 10:356 (1862), 11:179 (1865), 12:32 (1866), 12:455 (1868), 14:563 (1875), 15:207 (1877), 16:523 (1880), 18:28 (1884), 19:261 (1889), 26:234 (1907), 30:314 (1914), and 33:20 (1921). In 4 Ops. Atty. Gen. 361, 363 (1845), the general doctrine was held not to apply to a yet unfilled office that was created during the previous session of Congress, but this distinction was rejected in the following Attorney General opinions: 12:455 (1868), 18:28 (1884), and 19:261 (1889). For the early practice with reference to recess appointments, see 2 G. HAYNES, THE SENATE OF THE UNITED STATES 772-78 (1938).

[Footnote 2] 3 Fed. 112 (C.C.N.D. Ga 1880).

[Footnote 3] Subsequent cases concurring in this interpretation include United States v. Allocco, 305 F.2d 704, 712 (2d Cir. 1962), cert. denied, 371 U.S. 964 (1963) (a contrary interpretation “would create executive paralysis and do violence to the orderly functioning of our complex government”); United States v. Woodley, 751 F.2d 1008, 1012 (9th Cir. 1985) (en banc), cert. denied, 475 U.S. 1048 (1986) (a contrary interpretation would “lead to the absurd result that all offices vacant on the day the Senate recesses would have to remain vacant at least until the Senate reconvenes”); Evans v. Stephens, 387 F.3d 1220, 1226-27 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005) (“interpreting the phrase to prohibit the President from filling a vacancy that comes into being on the last day of a Session but to empower the President to fill a vacancy that arises immediately thereafter (on the first day of a recess) contradicts what we understand to be the purpose of the Recess Appointments Clause: to keep important offices filled and the government functioning”).

[Footnote 4] 33 Op. Att'y Gen. 20, 23 (1921).

[Footnote 5] 33 Op. Att'y Gen. at 25.

[Footnote 6] 33 Op. Att'y Gen. at 25.

[Footnote 7] See Evans v. Stephens, No. 04-828, Brief for the United States in Opposition to Petition for a Writ of Certiorari, at 11 (U.S. 2005); Mackie v. Clinton, Memorandum of Points and Authorities in support of Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment, at 24-26, Civ. Action No. 93-0032-LFO (D.D.C. 1993).

[Footnote 8] 23 Op. Att'y Gen. 599 (1901); 22 Op. Att'y Gen. 82 (1898). How long a “recess” must be to be actually a recess, a question here as in the pocket veto area, is uncertain. 3 O. L. C. 311, 314 (1979). A “recess,” however, may be merely “constructive,” as when a regular session succeeds immediately upon a special session. It was this kind of situation that gave rise to the once famous Crum incident. See 3 W. Willoughby, supra, at 1508-1509.

[Footnote 9] 5 U.S.C. § 5503. The provision has been on the books in some form since 12 Stat. 646 (1863).

[Footnote 10] Staebler v. Carter, 464 F. Supp. 585, 596 n.24 (D.D.C. 1979).

[Footnote 11] See Evans v. Stephens, 387 F.3d 1220, 1224 n.6 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005) (“To our knowledge, Congress has never attempted to diminish the pay of a recess-appointed judge while he was in office. Whether such an attempt would be constitutional is itself an open question.”).