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01/07/2012

Recess Appointments: The Original Meaning and its Decline
Mike Rappaport

As I noted previously, the current law and practice of recess appointments is seriously flawed from an originalist perspective.  I thought I would explain some of the problems with it and how we got here. 

Under existing law and practice, the President can make a recess appointment during both intersession and intrasession recesses.  (An intersession recess occurs between Senate sessions; an intrasession recess occurs during a Senate session.)  These intrasession recesses can be quite short – with the executive sometimes claiming recesses as short as 3 days are sufficient for a recess appointment, while at other times asserting longer periods, such as 10 days or two weeks, is necessary.    

Although not obvious initially, this executive view is absurd.  There is simply no way that the Constitution was written to permit this arrangement.  To understand the problem, consider the evident purpose of the Recess Appointments Clause.  The President ordinarily appoints officers with the advice and consent of the Senate.  During a recess, the Senate is not around and so the President needs to be able to make temporary or recess appointments to get the executive work done.  The goal, however, is also to prevent the President’s ability to make temporary appointments from swallowing the rule requiring Senatorial advice and consent for appointments.

The absurdity of the present arrangement becomes clear once one realizes that this arrangement does not operate to allow the President to make appointments merely when the recess prevents the Senate from giving advice and consent, but instead allows the President to circumvent senatorial advice and consent.

Consider the appointment of Richard Cordray to head the new Consumer Protection Financial Bureau.  This position has been vacant for many months.  Cordray had confirmation hearings in September.  The problem for the President was that the Senate was not going to act on his nomination.  So the President waited for a recess to make the recess appointment.  This history clearly shows that the recess appointment power is not being used to allow a needed appointment that otherwise could not be made because the Senate was in recess.  Instead, it is being used to permit the President to circumvent the Senate.

The original meaning of the Recess Appointments Clause is well designed to limit recess appointments to situations when the Senate’s recess prevented the appointment.  The Clause says that the President “may fill up all Vacancies that may happen during the Recess of the Senate.”  As I argue in this paper, this strongly suggests that the vacancy must arise during the recess and the recess appointment must occur during that same recess.  The first Attorney General opinion on the subject, written by Edmund Randolph in 1792, adopted this interpretation.  When the Congress was in recess for long periods – as long as nine months at a time – this recess appointment power worked quite well.  If a vacancy occurred in a needed position, the President filled it quickly. 

The first error that was introduced into the law occurred when Attorney General Wirt in 1823 reversed this opinion and concluded that the President “had the power to fill up all Vacancies” during any recess, irrespective of when the vacancy first occurred

This was bad, but its effect on the law was still limited because the law and practice still mainly restricted recesses to intersession recesses.  In 1901, Attorney General Knox wrote an opinion adopting that interpretation.  But in 1921, Attorney General Daugherty wrote an opinion, concluding that recesses referred not merely to intersession recesses but also to intrasession recesses, and we were off to the races.  Over time, the executive branch has shortened the length of the recess that would allow a recess appointment from 10 - 30 days down to 3, and the President can now freely circumvent the senatorial advice and consent.

The Senate’s attempt, first employed against President Bush by the Democrats, to curtail such recess appointments through pro forma sessions is a gimmick, but it is a gimmick designed to respond to the gimmicky (and erroneous) interpretations of the Recess Appointments Clause adopted by the executive branch.

As I said before, it is time to leave behind these gimmicks.  Only a return to the original meaning will constrain the President’s recess appointment power in a principled and nongimmicky way. 

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