I know what you’re thinking. Where can I find a comprehensive guide to U.S. Attorney General opinions on recess appointments? Complete with handy summaries and links to explanatory posts?
Look no further. Like Tom Lehrer’s musical rendition of the elements, the listing below may prove useful to some of you someday, under a somewhat bizarre set of circumstances.
ATTORNEY GENERAL OPINIONS
1792
Opinion on Recess Appointments, Edmund Randolph (July 7, 1792)
Randolph, the first Attorney General, was asked by Secretary of State Thomas Jefferson if a recess appointment could be made to fill the office of the Chief Coiner of the Mint. The statute creating the office had been passed on April 2, 1792, but no nomination was made before the Senate recessed on May 8. Randolph concludes that because the vacancy had “happened” during the session (ie., in April), rather than during the recess, no recess appointment could be made.
1823
Executive Authority to Fill Vacancies, 1 Op. Atty Gen. 631 (Oct. 22, 1823) (AG Wirt)
Wirt concludes that President has the power to fill, during the recess of the Senate, vacancies that first occurred during the Senate’s session. He acknowledges that an interpretation of the RAC requiring a vacancy to originate or first occur during the recess would be “most accordant with the letter of the constitution,” but he concludes that the better interpretation, that the vacancy must “happen to exist” during the recess, is most consistent with its spirit, reason and purpose.
The RAC was designed so that when “a vacancy shall exist which the public interests require to be immediately filled, and in filling which, the advice and consent of the Senate cannot be immediately asked, because of their recess, the President shall have the power of filling it by an appointment to continue only until the Senate shall have passed upon it; or, in the language of the constitution, till the end of the next session.”
The interpretation that the vacancy must first arise or occur during the recess would undermine the purpose “to keep these offices filled.” Wirt cites the example of a vacancy occurring in a distant office that occurs on the last day of the Senate’s session. The Senate might recess before news of the vacancy even reached the President, thus making it impossible to fill under the RAC even if it “may paralyze a whole line of action in some essential branch of our internal police.”
Wirt emphasizes that the word “happen” denotes an element of chance, saying the “most natural sense of this term is to ‘to chance—to fall out—to take place by accident.” He interprets the RAC to apply to “all vacancies which, from any casualty, happen to exist” during the Senate’s recess. His use of the word “casualty” (meaning a thing happening by chance) and many of the examples he gives of casualties that might prevent the Senate from providing advice and consent (some convulsion of nature, a sudden and destructive pestilence or an enemy invasion) suggests that the vacancy must involve an element of chance or accident.
Wirt repeatedly uses the terms “recess” and “session” as describing mutually exclusive periods. For example, he says: “The constitution does not look to the moment of the origin of the vacancy, but to the state of things at the point of time at which the President is called on to act. Is the Senate in session? Then he must make a nomination to that body. Is it in recess? Then the President must fill the vacancy by a temporary commission.”
Wirt concludes with these observations regarding the practical consequences of his interpretation: “The construction which I prefer is perfectly innocent. It cannot possibly produce mischief, without imputing to the President a degree of turpitude entirely inconsistent with the character which his office implies, as well as with the high responsibility and short tenure annexed to that office; while, at the same time, it insures to the public the accomplishment of the object to which the constitution so sedulously looks — that the offices connected with their peace and safety be regularly filled.”
For commentary see here and here
1830
Commissions Granted During the Recess of the Senate, 2 Op. Atty Gen. 336 (Apr. 6, 1830) (AG Berrien)
The commission of a recess appointee continues until the end of the Senate’s session, even if the Senate rejects the nomination of that appointee, unless the President decides to exercise his power of removal.
1832
Power of President to Fill Vacancies, 2 Op. Atty Gen. 525 (July 19, 1832) (AG Taney)
During the recess of the Senate in 1831, a vacancy occurred in an office of land register in Mississippi, and President Jackson appointed Samuel Gwinn to fill it. After the Senate convened in December 1831, Jackson nominated Gwinn for the office, and the Senate rejected the nomination. Jackson, “having afterwards received strong testimonials in [Gwinn’s] favor from the State of Mississippi,” re-nominated Gwinn in the same session. On the last day of its session, July 16, 1832, the Senate considered, but did not adopt, a resolution informing the President that it intended to take no action on the re-nomination during that session. Nevertheless, it adjourned without taking any action (which would seem to convey the point made by the proposed resolution).
(Incidentally, if you would like more information about Mr. Gwinn and the background on his appointment, see here).
Taney addresses the question of whether the President could make another recess appointment, of Gwinn or anyone else, during the recess that began on July 16, 1832.
Taney rejects the proposition that “in order to enable the President to make the appointment, the vacancy must take place during the recess.” He argues that this interpretation of the RAC “defeats the very object of the grant of power.” Like Wirt, he uses the example of a vacancy occurring in a distant part of the United States near the end of a Senate session to illustrate the unacceptable consequences of requiring the vacancy to “take place” during the recess.
Asserting “the constitution could not have intended” that vacancies existing during a recess, but arising earlier, be placed “on a different footing from vacancies which occur after the adjournment,” Taney contends “[t]here is no reason for a distinction between them.”
With regard to the language of the RAC, Taney argues that the word “happen” is “used to describe the class and kind of vacancies, and not the particular time at which they took place.” The “character of the vacancies” referred to by the Framers were those “which might arise from accident” or from “death, inadvertence, or mistake.”
Taney addresses the objection that “this power, if possessed by the President, may be so used as to defeat the intention of the constitution, and exclude the Senate from all share in appointments.” He allows that “vacancies are not designedly to be kept open by the President until the recess, for the purpose of avoiding the control of the Senate,” (emphasis in original), but notes that “[i]f the President willfully abuses a power given to him, the constitution has provided a remedy.”
Finally, he finds that even if one interprets the RAC to be limited to vacancies occurring in the recess, Jackson would still have the right to make a recess appointment in the circumstances before him. The previous recess appointment of Gwinn continued during the Senate’s session, and it did not expire until the Senate adjourned. Thus, “[t]he vacancy did take place in the recess,” and the President would have the right to fill it even under the narrowest interpretation of the RAC.
Two internal contradictions of Taney’s analysis should be noted. First, although he stresses that vacancies covered by the RAC are those resulting from accident or similar fortuity, he ignores the fact that the second vacancy (as opposed to the one originally filled by Gwinn) was hardly of that character. Rather it resulted from two decidedly non-accidental causes, (1) the Senate’s deliberate decision not to confirm Gwinn and (2) the automatic expiration of Gwinn’s first recess appointment by operation of the RAC.
Second, although Taney asserts that “the control of the Senate over appointments . . . is effectively preserved by the limited term for which the President is authorized to make [recess appointments],” his interpretation of the RAC as allowing successive recess appointments (of a nominee rejected by the Senate, no less) makes this limit largely chimerical.
1841
Power of the President to Fill Vacancies, 3 Op. Atty Gen. 673 (Oct. 22, 1841) (AG Legare)
Legare opines on the following (apparently hypothetical) question: “that a vacancy having occurred during a recess, the President had filled it up by a temporary appointment, under the clause of the constitution in question; then, after the meeting of the Senate, had made another nomination, which was not acted upon by the Senate; and so the office being now vacant, the question is, has the President power to fill up again, by granting a commission which shall expire at the end of the next session of the Senate?”
Legare begins by noting “that the vacancy strictly ‘happens’ during the recess” because the office was filled by the prior recess appointment up until the time of adjournment. Like Taney, however, he seems reluctant to place too much weight on this contention.
Instead, he focuses on the argument that the Senate’s failure to take action on a nomination during its session satisfies any requirement, implied by the use of the word “happen,” that the vacancy be “something fortuitous and unexpected.” He argues that the Senate’s failure to act upon the President’s nomination during its session must be presumed, as a matter of law, to be accidental (“the respect which the law acknowledges and challenges from that august body would require us to presume that the omission was a mere accidental one.”).
The opinion is full of strong language regarding the constitutional obligation to keep offices occupied.
“If the office is one created by law, the law which requires it to be filled is as binding on the Senate as one the President, whose special duty it is to see it executed.”
“The Senate, then, has no discretion to fill or not to fill it, but only to see to its being properly filled.”
“The President is charged with the whole executive power. He is to see the laws, and all the laws, executed. He is to fill all offices with fit persons, with a view to execute the laws. It is clear no interruption, no interregnum of executive power, can be contemplated. As long as the law lives, it must act; as long as it speaks, it must be heard; as long as it commands, its precepts must be enforced. Therefore the President, charged with the high duty of giving full effect to the law, must have a power like its own existence—perpetual.”
“[The Senate] has no constitutional right to create an interregnum of the government; no such tremendous discretion has been confided to it. It is not responsible to the people for any failure to execute the laws.”
Legare cites the (alleged) acquiescence of the “whole country” with respect to the President’s power of removal, as argued by Madison in the First Congress, in support of this concept of unitary executive power and responsibility.
1845
Appointment of Judges for Iowa and Florida, 4 Op. Atty. Gen. 361 (Apr. 18, 1845) (AG Mason)
Mason opines that where an act of Congress established new courts for the newly admitted states of Iowa and Florida, the President could not fill those offices with recess appointees. “If vacancies are known to exist during the session of the Senate, and nominations are not then made, they cannot be filled by executive appointments in the recess of the Senate. And the rules is the same where offices are created by law, taking effect during the session of the Senate, and no nominations are made.”
It is somewhat unclear from Mason’s opinion whether he is relying primarily on the fact that these were original vacancies, or on the fact that no nominations had been made, or whether he was simply unaware of the “happen to exist” theory of Wirt and his other predecessors.
For more on original vacancies, see here.
1846
Power of President to Appoint to Office During Recess of Senate, 4 Op. Atty Gen. 523 (Aug. 13, 1846) (AG Mason)
A vacancy arose during the 1845 recess in the office of deputy postmaster in Buffalo, and the President made a recess appointment to fill it. After the Senate began its next session (presumably in December 1845), the President nominated an individual for a permanent appointment, but the Senate rejected the nomination on August 8, 1846. Another nomination was made on August 10, but the Senate adjourned without taking action.
Question presented: “The Executive appointment made during the recess expired at the end of the session; and the question is, can any appointment be now made to supply the vacancy?”
Mason’s analysis relies heavily on the prior opinions of Wirt, Taney and Legare, which he recites in some detail.
His opinion appears to be limited to the precise question before him, where a prior recess appointment expires at the end of a session. Like Legare, he relies both on the timing of the vacancy and the “accidental” nature of the Senate’s inaction.
“In this case, the Executive appointment made during the recess in 1845 filled the office, according to law, until the end of the late session of the Senate. It is now vacant. When did it become so? In the language, at the end of the session; although it may be said that the two events occurred eo instanti. Still, the vacancy happened at a time, and continues now to exist, when the President cannot obtain the advice and consent of his constitutional advisors.”
This language suggests a distinction between “happening” and “continuing to exist,” but also some uncertainty about whether it was entirely fair to say that the vacancy occurred during the recess. Mason also notes that “[i]t is no disrespect to the Senate to suppose that their failure to act on this nomination was accidental,” and “whatever may have been the cause, the vacancy did happen to exist when their session ended.” It is not clear whether these observations are collective or alternative grounds for his conclusion that another recess appointment is permissible.
With regard to the potential for abuse, he notes: “But an argument founded on the supposition of abuse of trust on the part of the President, is entitled to no great weight. It might be argued with equal propriety that there may happen to be a majority in the Senate, which, by withholding consent to nominations or by refusing to act on them, might so embarrass the President that the government could not be administered, if he had not the power to prevent the mischiefs by filling the vacancies by temporary appointments. The President is liable to impeachment, and there is no reason to apprehend that the Senate will be influenced in their official conduct by such motives.”
As in other AG opinions, this opinion clearly uses “recess” to mean “not in session” and vice versa. Thus, Mason notes that the recess appointment “power depends on the happening of vacancies when the Senate is not in session.”
1862
President’s Appointing Power, 10 Op. Atty Gen. 356 (Oct. 15, 1862) (AG Bates)
Bates opines that the President may fill a vacancy on the Supreme Court, “which vacancy existed during and before the last session of the Senate.”
“If the question were new, and now, for the first time, to be considered, I might have serious doubts of your constitutional power to fill up the vacancy, by temporary appointment, in the recess of the Senate. But the question is not new. It is settled in favor of the power, as far, at least, as a constitutional question can be settled, by the continued practice of your predecessors, and the reiterated opinions of mine, and sanctioned, as far as I know or believe, by the unbroken acquiescence of the Senate.”
1866
The President’s Power to Fill Vacancies in Recess of the Senate, 12 Op. Atty Gen. 32 (Aug. 30, 1866) (AG Stanbery)
Perhaps feeling that Mason’s more equivocal positions had somewhat unsettled the executive branch position, Stanbery covers in some depth the issues previously addressed by Wirt and his other predecessors. Specifically, he addresses the question “[w]hether, in cases where appointments have been made of postmasters in the recess prior to the last session of the Senate, and there was a failure during the session to make a permanent appointment, either by the refusal of the Senate to confirm the nominee, a failure to act on the nomination, or other cause, the President can make another temporary appointment in the present recess.”
Stanbery identifies some of the contingencies that may cause a vacancy not to be filled during the session (vacancy not known until after recess begins, Senate fails to act, confirmed nominee refuses to accept office, Senate rejects nominee at the last moment, President fails to make nomination)
Stanbery acknowledges Taney’s conclusion that after a recess appointment expires at the end of the session, thereby creating a new vacancy that happens during the recess. While not disagreeing with this conclusion, he says that it “has been much questioned,” and therefore “I do not propose to stop upon it, but prefer to place my opinion on other grounds, independent of the question whether the vacancy first occurred during the session or during the recess.”
Stanbery denies that the words of the RAC necessarily imply that the vacancy must first occur during the recess, arguing that a vacancy implies a duration, not a single point in time. In his view the words of the RAC can reasonably be read “as if the phrase were ‘If it happens that there is a vacancy in the recess’ or ‘if a vacancy happens to exist in the recess.’”
He then goes on, like Legare, to emphasize the breadth of executive power and the importance of its always being capable of exercise. “If one purpose is manifest in the Constitution, if any one policy is clearly apparent, it is, that in so far as the chief or fountain of executive power is concerned, there shall be no cessation, no interval of time when there may be an incapacity of action.”
“But the President, although the source of executive power, cannot exercise it all by himself.”
“It is the President whose duty it is to see that the vacancy is filled. If the Senate is in session, they must assent to his nomination. If the Senate is not in session, the President fills the vacancy alone.”
In a somewhat unique argument (criticized by Professor Rappaport), Stanbery says that interpreting the RAC to apply only to vacancies which first occur in the recess would mean that such vacancies could be filled even once the Senate convenes its session.
Like Legare, Stanbery acknowledges the possibility of abuse, but argues that this is an insufficient argument to negate the existence of the President’s power; the advise and consent power can likewise be abused.
He further argues that the potential for abuse would be nearly as great even under the opposing interpretation of the RAC. He points out, for example, the President could use his power of removal to create vacancies during a recess, fill the vacancy with a recess appointment, fail to nominate anyone during the ensuing session, and then make another recess appointment when the session ends.
He contends, therefore, that the safeguard of the Senate’s right is not the President’s inability to fill vacancies that arise during the session, but the fact that the President can only make a temporary appointment. For example, a marshall, whose regular term would be four years “can scarcely hold for a full year” with a recess appointment.
He concludes: “I am accordingly of opinion, that the President has full and independent power to fill vacancies in the recess of the Senate, without any limitation as to the time when they first occurred.”
1868
Case of the Office of Minister to Venezuela, 12 Op. Atty Gen. 457 (Aug. 7, 1868) (AG Evarts)
The question presented is whether the office of minister to Venezuela had passed into abeyance under the tenure-of-office act by virtue of the fact that the Senate had adjourned on July 27, 1868 without having acted on the nomination of Mr. Stillwell (who had apparently been recess appointed to the position in the prior recess). Evarts concludes that the office has passed into abeyance, that it therefore cannot be filled by the President with another recess appointment and that Stillwell may no longer be regarded as the minister to Venezuela.
Case of the Collectorship of New Orleans, 12 Op. Atty Gen 449 (Aug. 17, 1868) (AG Evarts)
Mr. Kellogg, collector of New Orleans, tendered his resignation on July 17, 1868 and that same day was sworn in and took his seat as a U.S. Senator. Before the Congress adjourned on July 27, 1868, the President submitted a nomination, but the Senate took no action. The question presented was whether the President could fill the office with a recess appointment.
Evarts first found that the office was vacant, either as the result of Kellogg’s resignation (which had not been accepted) or by his being seated in the Senate.
Evarts then expresses his agreement with the opinion of Attorney General Wirt as to the “necessary and proper construction” of the RAC, and notes that it is supported by subsequent opinions of Taney, Legare, Mason and Stanbery.
Evarts appears to accept the validity of the tenure of office act with respect to the provision that an office will fall into abeyance if the Senate fails to confirm a nominee by the end of the next session of the Senate after a recess appointment has been made. Nothing in the act, according to Evarts, purports to restrict the President’s authority to make an initial recess appointment. He opines that the language of the act (“the President shall have power to fill all vacancies which may happen during the recess of the Senate, by reason of death or resignation, by granting commissions which shall expire at the end of their next session”) merely repeats constitutional language without placing any interpretation on them. Thus, “they are simply adopted in their true constitutional sense, whatever that sense may be.”
He concludes: “I am therefore of opinion that, upon the well-considered and long-continued interpretation of this clause of the Constitution, the President has power to fill the vacancy in the office of collector at New Orleans, by granting a commission that shall expire at the end of the next session of the Senate, and that the ‘tenure-of-civil-office act’ does not in terms, nor in intent, nor in legislative construction of this clause of the Constitution, affect this power of the President in the case submitted for my opinion.”
For more on this opinion, see here.
Case of the Collectorship of Customs for Alaska, 12 Op. Atty. Gen. 455 (Aug. 17, 1868) (AG Evarts)
This case presented a question of an “original vacancy,” namely a newly created office created by statute right before the end of the congressional session and for which no nomination had been made.
Evarts acknowledges that the only previous consideration given to the “precise question” was by Mason, who “held that, where offices are created by law, taking effect during the session of the Senate, and no nominations are made, they cannot be filled by executive appointment during the recess of the Senate.” Evarts, however, dismisses Mason’s position out of hand, asserting that it is inconsistent with the general view of the RAC described by numerous Attorneys General, including Mason himself. He states that “I am unable to discriminate, in respect to the exercise of this constitutional power by the President, between cases of continuing vacancy in the recess of the Senate, which originate during the session by the creation of the office, and those which so originate by a lawful termination of an incumbency.”
For more on original vacancies, see here.
Case of District Attorney for Eastern District of Pennsylvania, 12 Op. Atty. Gen. 469 (Aug. 21, 1868) (AG Evarts)
This case involved a question of whether the tenure of office act extended a fixed statutory term so as to prevent the office in question from being vacant (Evarts concludes that it did not). With respect to the RAC, Evarts merely reiterates the same position as expressed in his earlier opinions, namely that the President has the power to fill vacancies that exist during the recess, even if the vacancy began to exist during the session.
1875
Temporary Appointments in the Army, 14 Op. Atty Gen. 562 (Apr. 24, 1875) (AG Williams)
Acts of March 2 and 3, 1875 authorized the appointment of additional paymasters with the rank of major up to a total number of 50. President submitted nominations to the Senate, which failed to confirm two of the nominees, leaving two vacancies when it adjourned.
Williams opines that this question is “settled,” at least so far as this Department is concerned, by the opinions of his “learned predecessors.” There is no restriction on the President’s authority to fill these vacancies by recess appointment; he is free to appoint nominees previously submitted to (but not confirmed by) the Senate.
1877
Temporary Appointments by the President, _________________________ (Mar. 12, 1877) (AG Devens)
quoting Evarts, Devens opines that the President may fill “all vacancies that happen to exist at a time when the Senate cannot be consulted as to filling them.”
Acknowledges that this power is subject to the provision of the tenure of office act that “if no appointment be made during the session of the Senate held next after the vacancy occurs, the vacated office shall fall into abeyance.”
1880
Appointments During Recess of the Senate, 16 Op. Atty Gen. 522 (June 18, 1880) (AG Devens)
The commission of the collector of the port of Philadelphia expired on May 31, 1880 while the Senate was in session. A nomination to fill the office was made, but the Senate adjourned without acting on it. The President then recess appointed the nominee to fill the vacancy.
Devens recites the opinions of his predecessors, including Wirt and Taney, to show the “uniform construction” that “the words ‘may happen during the recess’ are to be construed as equivalent to ‘may happen to exist during the recess.’” Thus, the President had the power to fill the vacancy even though it arose while the Senate was in session.
He also approvingly cites Evarts’s opinion on the applicability of the tenure of office act, namely that the act did not affect the power of the President to fill an office which became vacant during the session of the Senate, unless the office was not permanently filled (with the Senate’s advice and consent) by the end of the next session of the Senate, at which point it would fall into abeyance.
Devens says with regard to Evarts’s opinion: “When it is considered that this opinion was rendered at a time when the passage of the ‘tenure of office act’ was still recent, and that for well understood and obvious political reasons it must have been the desire of the then President, in dealing with legislation novel in its character and apparently intended to limit his powers, to act cautiously and judiciously, it must be considered of great value apart from its reasoning, which seems eminently satisfactory.”
He says “I am aware that this invariable construction given by the Executive Department has been from time to time disputed in the Senate; but legislation has never attempted to control it.”
Devens seems to accept Congress’s power to enact laws such as the tenure of office act and the Pay Act, noting “[t]hat Congress may create offices, and may define their duties, emoluments, and limitations to their exercise, has never been questioned.” However, he argues that these acts do not attempt to directly regulate the President’s exercise of the recess appointment power, and even implicitly concede the right of the President to recess appoint when vacancies arise during the Senate’s session.
Finally, Devens dismisses the contrary opinion of Judge Cadwalader, saying [a] decision of a single judge of admitted ability, but of a subordinate court of the United States, cannot be considered of great authority or weight against the opinions I have cited and an administrative usage the discussion of which commenced as early as the time of President Monroe, and in reference to which such usage has been invariable.”
District Attorney- Temporary Appointment, 16 Op. Atty. Gen 538 (July 9, 1880) (AG Devens)
A vacancy occurred in the office of the U.S. attorney in Alabama. The Circuit Justice made a temporary appointment to the office pursuant to a statute that authorized such appointments until such time as the President made an appointment “and the appointee is duly qualified.” The President subsequently made a recess appointment, and the question arose whether the President’s recess appointee or the Circuit Justice’s appointee was entitled to the office.
Devens first reiterates the longstanding executive branch position that the RAC applies even when the vacancy first occurs during the session of the Senate, noting that “the words in the Constitution, ‘which may happen during the recess of the Senate,’ are to be construed as if written ‘which may happen to exist during the recess of the Senate.’” He claims that “an examination of the legislation of Congress will also show that such legislation has not in any way been inconsistent with the construction placed by the Presidents upon their power.”
Moreover, the statutory authority invested in the Circuit Justice was only to fill the office until the President made an appointment. The statute’s meaning was not limited to presidential appointments made with advice and consent. Therefore, “the office is not the less vacant” for purposes of the RAC while it is occupied by a temporary appointee of the Circuit Justice.
1883
Appointment to Office, 17 Op. Atty Gen 521 (Feb. 21, 1883) (AG Brewster)
An office which has become vacant during a session of the Senate may be filled during the next ensuing recess of the Senate by a temporary appointment by the President, but under the Pay Act the salary of the appointee is postponed until he has been confirmed. (Brewster does not question Congress’s authority to enact this statute).
1884
Vacancies in Office, 18 Op. Atty. Gen. 29 (June 25, 1884) (AG Brewster)
Brewster affirms his agreement with Wirt’s position (also supported by other AGs including Taney, Legare, Mason, Cushing, Bates, Stanbery, Evarts, Williams and Devens) that the RAC “comprehends all vacancies that may happen to exist in a recess of the Senate, irrespective of the time when such vacancies first occurred.”
“The considerations which support the construction mentioned are so fully presented in that opinion, that I deem it unnecessary to restate them here. I will merely add that I am impressed with their weight, and am entirely satisfied as to the soundness of that construction.”
1889
Vacancy in Office, 19 Op. Atty Gen. 261 (Mar. 20, 1889) (AG Miller)
To the President: “You ask me whether, when a vacancy in an office occurs during as session of the Senate, which is not filled until a recess of the Senate, you have the power to fill it, during the recess, by a temporary appointment and commission.”
Miller goes through the Wirt and Taney opinions on this question
“It was the intention of the Constitution that the offices created by law, and which are necessary to the current operations of the Government, should always be full; and that, when vacancies happen, they shall not be protracted beyond the time necessary for the President to fill them.”
Miller also addresses the question of original vacancies. In his view, the word “vacancy” in the Constitution “signifies the condition where an office exists, of which there is no incumbent.”
“In the case submitted the law has created the office. The office, therefore, exists. There is no incumbent. There is, therefore, a vacancy, and the case comes under the general power to fill vacancies.”
“In reaching the above conclusions, I have not been forgetful that the word ‘happen’ in the Constitution suggests casualty or absence of premeditation; but it is incompatible with the character of the high office with which the votes of an intelligent people have entrusted the President, to presume that a power so necessary to the public welfare will be used needlessly, when time and opportunity are afforded for intelligent and judicious action during the session of the Senate.”
For commentary on this opinion, see here.
1901
President- Appointment of Officers- Holiday Recess, 23 Op. Atty. Gen. 599 (Dec. 24, 1901)
On December 24,1901, during the administration of Teddy Roosevelt, Attorney General Knox issued an opinion responding to the question whether President Roosevelt could fill a vacant office (the appraiser of merchandise in the district of New York) during the “current holiday adjournment” of the Senate. Both houses had adjourned from December 19, 1901 to January 6, 1902 for the Christmas and New Years holidays.
It is important to appreciate the factual context of this question. The Fifty-seventh Congress had been elected in 1900 but, in accordance with normal practice prior to the 20th Amendment, its first meeting was not until the first Monday of December 1901 (December 2). The taking of a holiday adjournment during the session that began in December had become a matter of routine after the Civil War, with such adjournments typically lasting a maximum of 19 days (there was one exception in 1877, when the adjournment lasted for 26 days). The 17-day adjournment considered by Knox fell squarely within this tradition.
The issue, according to Knox, was “[m]ay the President appoint as in the recess when the Senate had adjourned temporarily to a day certain?” In answering this question in the negative, Knox explained the parliamentary differences between a resolution for “final adjournment of Congress for the session,” on the one hand, and, on the other, “a merely temporary suspension of business from day to day or, when exceeding three days, for such brief periods over holidays as are well recognized and established and as are agreed upon by the joint action of the two Houses.” While Knox acknowledged that the latter type of temporary adjournment might constitute “a recess in the general and ordinary use of that term,” he denied that it could be “the recess” referred to by the Recess Appointments Clause.
For further discussion of this opinion, see here.
1907
The President—Recess Appointment—Naval Officer, 26 Op. Atty. Gen. 234 (Apr. 17, 1907)(Acting AG Hoyt)
An act of Congress specifically authorized the President to restore, by and with the advice and consent of the Senate, a particular individual (Leonard Martin Cox) to the Corps of Engineers of the Navy. The question presented was whether the President could give Cox a recess appointment to this office.
“The great weight of authority is that in reference to any vacancy, whether occurring by death, resignation, etc., or by the creation of a new office by act of Congress, which is an ‘original vacancy,’ the words ‘may happen’ mean ‘may happen to exist,’ and therefore, whenever and however the vacancy first occurred, it may be filled during the recess by a temporary appointment under a commission which shall expire at the end of the next session of the Senate.”
“The theory is that the President does not fill the office without the concurrence of the Senate, but may fill the vacancy in the recess, yet only by an appointment which lasts until the end of the next session.”
Hoyt therefore advises that the President may give Cox a recess appointment, but he advises that under the Pay Act Cox cannot be paid until he is confirmed by the Senate.
1914
President– Recess Appointment—Postmaster, 30 Op. Atty Gen. 314 (Nov. 24, 1914) (AG Gregory)
a vacancy in postmaster office which occurred during the session of the Senate but which remained unfiled during the recess due to the Senate’s failure to confirm an appointment may be filled by the President under the RAC.
Gregory states that the opinions of predecessors “announce as a doctrine of administrative law, that the expression in the Constitution ‘all vacancies that may happen during the recess’ signifies ‘all vacancies that may happen to exist during the recess.’”
“they agree it is the true spirit and meaning of the Constitution to have all the offices which Congress indicates to be needful for the ends of Government by creating them filled, provisionally rather than they remain vacant or that a special call of the Senate be required for the purpose of confirmation.”
“If, during the recess, the power is not in the President, then it is nowhere, and there would be a time when for a season the President is required by the Constitution to see that the laws are executed and yet denies the opportunity to avail of the only means provided for their execution.”
1921
Executive Power- Recess Appointments, 33 Op. Atty Gen. 20 (Aug. 27, 1921) (AG Daugherty)
Addressing the question of whether a 28-day adjournment could constitute the “recess of the Senate” within the meaning of the RAC, Daugherty answers in the affirmative. He states that “[r]egardless of whether the Senate has adjourned or recessed, the real question, as I view it, is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word ‘recess’ a technical and not a practical construction, is to disregard substance for form.”
To help make this “practical” determination, Daugherty looks at questions derived from the 1905 Senate Judiciary Committee report: “Is the adjournment of such duration that the members of the Senate owe no duty of attendance? Is its chamber empty? Is the Senate absent so that it can not receive communications from the President or participate as a body in making appointments?” These factors are to be weighed by the President, who Daugherty says has a “large, although not unlimited, discretion” to make the determination as to “when there is a real and genuine recess.” Without explaining how these factors support the conclusion, Daugherty indicates that the 28-day adjournment in question qualifies as a “recess” within the meaning of the RAC.
Daugherty makes clear that every adjournment cannot qualify as a recess: “If the President is empowered to make recess appointments during the present adjournment, does it not necessarily follow that the power exists if an adjournment for only 2 instead of 28 days is taken? I unhesitatingly answer this by saying no.” Daugherty says that adjournments of 3, 5 or “even 10 days” cannot constitute the “recess of the Senate.” Although the “line of demarcation can not be accurately drawn,” there is a point at which an adjournment would be so short that the President could not deem it to be a recess without abusing his discretion.
1960
Recess Appointments, 41 Op. Atty. Gen. 463 (July 14, 1960) (Acting AG Walsh)
The President is authorized to make recess appointments to fill vacancies during the non-final adjournment of the Senate from July 3 to August 8, 1960.
The reconvening of the Senate on August 8 is not to be regarded as the “next session” of the Senate within the meaning of the RAC.
For purposes of the Pay Act, the July 3 adjournment constitutes the “termination of the session of the Senate” (relying on Comptroller General Warren’s opinion to that effect).
The reconvening of the Senate on August 8 may constitute the “next session” of the Senate for purposes of the Pay Act, and so President should submit, within 40 days of the Senate’s reconvening, nominations for individuals who received recess appointments during the recess.
For commentary see here.