To continue our discussion of the Recess Appointments Clause, I would like to revisit a debate that took place on the Senate floor in March 1814. It concerned actions taken by President Madison earlier that year, while the Senate was in recess. Having received an offer from Czar Alexander of Russia to help mediate an end to the War of 1812, Madison used his powers under the RAC to name three envoys (John Quincy Adams, Albert Gallatin and James Bayard) to conduct negotiations on behalf of the United States.
When Congress returned, Senator Gore of Massachusetts introduced a resolution that declared Madison’s actions to be unconstitutional. The resolution began:
The President of the United States having by the Constitution power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.
RESOLVED, That, in the opinion of the Senate, no such vacancy can happen in any office not before full.
Gore’s argument focused on the words “which may happen” in the RAC. He acknowledged that a newly created office might be said to be “vacant” and that “[a] vacancy may be said to exist in such office, immediately after its creation.” However, “for a vacancy to happen at any time in an office, that office must have been full at some time previous to the period when it did happen; for a vacancy to happen during the recess of the Senate, the office must have been full during their session prior to, and at the commencement of their recess.” (emphasis added). Since the envoy positions given to Adams, Gallatin and Bayard had never been filled previously, no vacancy could have “happened” in these offices, and thus the RAC was not triggered.
Gore rested his argument not only on the plain language of the RAC, but on policy and precedent. With regard to the former, he noted that “[i]f an office had been created by law, or otherwise, and brought into existence during the session of the Senate, it would be only for the President to wait until their recess to commission a person to fill the vacant office . . . .” Moreover, the President might then keep the person if office indefinitely by re-appointing him when his commission expired at the end of the next session. (As Senator Bibb would point out later, however, the possibility of successive appointments, which Bibb characterized as an “abuse” of the RAC, existed regardless of whether the Clause applies to newly created offices).
With regard to precedent, Gore noted that “[m]ost offices are created by Congress” and “[t]he practice has been, in cases where there is reason to apprehend that sufficient time will not be afforded, during the session of the Senate, for a proper selection of persons to fill such offices, and that inconvenience might result from delay till their next session, to authorize the President to appoint such officers in the recess of the Senate.” This practice would not have been necessary, Gore noted, if the RAC already gave the President this power.
Two senators spoke against Gore’s resolution. Senator Bibb of Georgia expressed his personal view that the “true interpretation” of the RAC was “that the Executive may fill all offices which from whatever causes happen to be vacant or unoccupied during the recess of the Senate, without regard to the precise period when they became so.” Perhaps recognizing that this was an idiosyncratic view, Bibb did not offer it as a justification for Madison’s use of the RAC, instead accepting for purposes of the argument that “the President is not authorized to fill vacancies unless they happen during the recess of the Senate.”
In the case at hand, however, Bibb stressed that the offices were not created by statute, but were diplomatic offices of a type established by the President as part of his control over foreign affairs. The creation of such offices would generally depend on “accidental circumstances,” as had been the case with regard to Madison’s appointment of the three envoys. Since “[t]he mediation of Russia was proposed during the recess” and Madison responded by appointing the envoys during the same recess, the vacancies had clearly “happened during the recess” within the meaning of the RAC.
Senator Horsey of Delaware also spoke against Gore’s resolution. Unlike Bibb, Horsey acknowledged that the letter of the RAC limited it to vacancies that first arose during the recess of the Senate. Like Bibb, he stressed that the creation of a diplomatic office depends on events, and if those events occur during the recess of the Senate, as they had in the case of the three envoys, the President was authorized to make temporary appointments under the RAC.
Horsey also expressed reservations about a literal application of the RAC in all cases. He gave the hypothetical where the Collector of the port of New Orleans died near the end of the session, but word of the death did not reach Washington before the Senate adjourned. If this were to leave the government with not options other than either to re-convene the Senate or to leave a critical office vacant for an extended period of time, it would cause great expense, disruption and inconvenience all around.
So what can we learn from the debate on Gore’s resolution (on which the Senate ultimately took no action)? First, there were some key points on which all three senators agreed. They all acknowledged that Congress had frequently enacted statutes which authorized the President to make temporary appointments in cases where the RAC clearly or arguably did not apply, and none of them questioned the propriety of this practice. Bibb expressly acknowledged that it was “necessary” for Congress to provide such authority in the case of offices newly created during the session, although it is somewhat difficult to square this statement with his “true interpretation” of the RAC.
The point of disagreement was that Gore wanted to insist on a strict and literal application of the RAC, while Bibb and Horsey believed that there was a tension between the literal terms of the RAC and its intended (or assumed) purpose. To resolve this tension, they were willing to allow the President some discretion in determining whether a vacancy had “happened” in the recess of the Senate. In concluding that Madison had properly exercised that discretion, both stressed the role of accidental circumstances in causing the appointments of the envoys during the recess.
Bibb and Horsey also stressed the limited nature of the President’s authority. Bibb explained that the President’s RAC power was “under the strictest guards or checks” in that “it can only be exercised in the recess of the Senate” and “the commission creating the appointment shall expire at the end of the next session of the Senate.” Similarly, Horsey stated that the checks on the President’s power were “abundantly sufficient” because “[t]he commissions granted continue no longer than the end of the next session of the Senate, and in the meantime the Senate may reject the nominations.” It seems clear that both senators would have rejected successive appointments as, at best, an abuse of the RAC.
IMHO, this relatively obscure debate provides some important context to understand more contemporary developments in the interpretation of the RAC. And by “more contemporary” I mean the 1820s. More on which coming up.