Author: Michael Stern

As discussed in my prior post on this subject, it seems to have been the prevailing view in the 1814 Senate that the President could not use the Recess Appointments Clause to fill a newly created statutory office, absent explicit authority in the law to do so. This view could rest on three different grounds. First, it might be argued that a newly created office isn’t “vacant” because the term “vacancy” implies that the office has previously been filled. Second, if a newly created office is considered vacant, the vacancy may be said to happen when the statute creating the office becomes law, which will normally be when Congress is in session. Finally, it may thought that any vacancy in an newly created office doesn’t “happen” at all because it is not caused by accidental circumstances like death or resignation.

Many years before the 1814 debate, Alexander Hamilton stated that the RAC was inapplicable to newly created offices on both the first and third grounds. In 1796, Hamilton advised President Washington that the RAC could not be used to create and fill a new diplomatic position during the recess of the Senate. See David Currie, The Constitution in Congress: The Federalist Period 1789-1801 154 n. 168 (1997). In a 1799 letter to the Secretary of War, Hamilton reiterated his view that “Vacancy is a relative term, and presupposes that the Office has been once filled.” Id. He also argued that “the phrase ‘which may have happened’ serves to confirm this construction” because “it implies casualty- and denotes such Offices as having been once filled, have become vacant by accidental circumstances.” See Michael Rappaport, The Original Meaning of the Recess Appointments Clause 31-32 (2005).

Continue reading “The Recess Appointments Clause, Original Vacancies and Attorney General Wirt”

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.

Continue reading “The Recess Appointments Clause and the War of 1812”

Article II, §2, cl. 3 of the Constitution (the “Recess Appointments Clause” or “RAC”) provides that “[t]he President shall have 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.”

The Constitution requires that Congress “assemble” at least once a year. Under the 20^th Amendment, Congress assembles on January 3, unless a different day is established by law. This begins a “session” of Congress, which lasts until it adjourns sine die or until the session expires automatically by the commencement of a new session in the next year. Normally Congress holds one session per year; thus, one would typically refer to a bill or report as having occurred in either the First or Second Session of a particular Congress (eg, 110^th Congress, 2d Sess.). However, nothing prohibits holding more than one session per year, and on occasion there have been Congresses that have held more than two sessions (indeed, the first Congress held three sessions).

According to the January 3, 2012 Congressional Daily Digest: “The Senate met in pro forma session to convene the second session of the 112th Congress at 12:01:32 p.m., and adjourned at 12:02:13 p.m. until 11 a.m., on Friday, January 6, 2012.” So after “assembling” for nearly a full second [Update: as an observant reader points out, that should be nearly a full minute- 41 seconds in fact], the Senate adjourned for 2 days, 22 hours, 59 minutes, and 57.87 seconds. (Hope you are taking notes- this could be on the exam).

On January 4, President Obama made four appointments pursuant to the Recess Appointments Clause. Three of them were to the National Labor Relations Board (NLRB), and one was the director of the new Consumer Financial Protection Bureau (CFPB).

Depending on whom you ask, these actions were clearly constitutional, clearly unconstitutional, or somewhere in between. Most commentators have focused on the question of whether the Senate was in “recess” at the time the appointments were made. Sometimes this question gets confused with whether the Senate was “adjourned” or “in session,” but these questions are more easily answered. The Senate was certainly adjourned on January 4 (then, again, the Senate is adjourned for at least part of virtually every day). Whether the Senate was “in session” depends on whether one is using this phrase as simply the converse of being adjourned (as it often colloquially used) or whether one is asking if January 4 was “during the Session of Congress” (the phrase used in Article I, section 5, cl. 4). If one means the former, the answer is no; if the latter, the answer is yes because the second session of the 112^th Congress convened on January 3.

Continue reading “So About that Recess Appointments Clause”