The Recess Appointments Clause

The 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.

—Robert G. Natelson

Introduction

The Constitutional Convention adopted the Recess Appointments Clause to prevent paralysis during periods when the Senate was not in session. The clause presents three important legal questions: (1) For the President to appoint without senatorial consent, must the vacancy arise during the recess or may it have arisen when the Senate was in session and continued into the recess? (2) Does “Recess of the Senate” include only inter-session recesses or also intra-session adjournments? (3) If it includes some intra-session adjournments, which ones qualify? The answers to these questions determine whether, when, and for how long a President may fill a vacant position.

History Before 1787

Several colonial charters contained provisions governing appointments to vacancies in offices elected by the people or by colonial legislatures.¹ Early state constitutions contained more of these provisions,² and some early American statutes addressed vacancies as well.³ The Confederation Congress’s 1787 Northwest Ordinance included a vacancy-appointments clause for territorial legislative councils.⁴

These provisions contained certain common features that would appear in the Constitution’s Recess Appointments Clause. First, many were triggered when a “vacancy happens,”⁵ an expression derived from English practice.⁶ According to contemporaneous dictionaries, an occurrence “happened” when it arose.⁷ This meaning is confirmed by many of the clauses themselves, which often provided examples of events that made a vacancy “happen,” including death, resignation, departure from the jurisdiction, and removal from office.⁸

Second, provisions for filling vacancies typically required that the triggering vacancy arise within an identified time period. Thus, the Maryland constitution provided that a vacancy in the office of Register of Wills must occur “in the recess of the General Assembly.”⁹ A 1783 Massachusetts law authorized the governor to fill vacancies in the office of Collector of Excise if a vacancy “shall happen by reason of the death, resignation, removal out of the State, or non-acceptance of any person appointed” during “the recess of the General Court [legislature], or at so late a period in any session of the same Court, that the vacancy occasioned . . . shall not be supplied in the same session thereof. . . .”¹⁰

Third, as exemplified in the Maryland and Massachusetts provisions, “the recess” of the legislature often composed all or part of the time during which the triggering vacancy had to arise. Although in other contexts “recess” might mean any pause in proceedings, in this context “the recess” specifically referred to the period between formal legislative sessions or “sittings.”¹¹ In prevailing British and American legislative practice, no adjournments other than an adjournment sine die (or its equivalent) commenced “the recess.”¹²

Finally, provisions for filling vacancies typically specified the duration of interim appointments. The 1776 Maryland constitution, for example, terminated them when the legislature met,¹³ and the 1776 Delaware and 1778 South Carolina constitutions terminated them when the legislature elected replacements.¹⁴

The Constitutional Convention

Many of the delegates to the Federal Convention of 1787 derived their authority from documents that included vacancy-appointment clauses.¹⁵ At least two, James McClurg of Virginia and William Blount of North Carolina, were themselves vacancy appointments.¹⁶

The Convention discussed at length whether the President should wield such traditionally executive powers as appointment to office or share those powers with one or both houses of Congress. Ultimately, the delegates decided to condition presidential appointments on Senate consent unless the office was an “inferior” one and a statute vested appointment in the President alone.¹⁷

That decision, however, necessitated a way to fill offices requiring senatorial consent when the Senate was not in session. On September 7, 1787, Richard Dobbs Spaight of North Carolina proposed the Recess Appointments Clause in substantially its current form. The Convention adopted it without dissent.¹⁸ The Recess Appointments Clause thereby became one of the finished Constitution’s three vacancy-appointment provisions. The other two addressed vacancies in the House of Representatives and the Senate.¹⁹

The Ratification Debates

The fact that the Recess Appointments Clause closely followed preexisting patterns helps to explain why there were only isolated and undeveloped objections to it during the ratification debates. Governor Edmund Randolph of Virginia identified the Recess Appointments Clause as a defect in the Constitution but offered no reason for this conclusion.²⁰ James Monroe, the future President, criticized Randolph: “This inoffensive clause is made a ground of objection by Governor Randolph! I wish he had informed us wherefore.”²¹ Randolph did not pursue the matter. A South Carolina Anti-Federalist predicted possible “serious consequences” but failed to elaborate.²² New York Governor George Clinton thought the clause granted the President power to appoint interim Senators,²³ but few, if any, agreed with this misreading.

Otherwise, reaction seems to have been favorable. Alexander Hamilton resoundingly rebutted Clinton’s mistake in Federalist No. 67. Another Federalist writer labeled the clause “inoffensive,”²⁴ and still others touted it as proof that the new Senate would not be in continuous session.²⁵

Early Practice

In 1792, Congress created the office of Chief Coiner, but President George Washington did not fill the vacancy during the congressional session. After the session, Secretary of State Thomas Jefferson asked Attorney General Edmund Randolph for his opinion on whether the President could make a recess appointment. The answer depended on whether the vacancy in the Chief Coiner’s office “happened” only when it arose during the session or continued to “happen” into the recess. Randolph responded that “happen” means “arise.” The President could not fill the vacancy because it “happened” while Congress was still in session.²⁶ Randolph’s conclusion was consistent with established meanings.

Yet more than three decades later, in 1823, Attorney General William Wirt opined that “happen” means “exist.” He acknowledged that the more natural reading of the constitutional language is that “happen” means “arise” but concluded that the “spirit” of the Constitution supported the “exist” interpretation because unanticipated occurrences might cause the Senate to recess without confirming a nominee.²⁷ Wirt did not support his conclusion by citing any external authorities, but that has not deterred the Executive from adhering to the view that “happen” means “exist.” By contrast, in 1863, the Senate Judiciary Committee issued a report strongly contending for the “arise” interpretation,²⁸ and Congress passed a statute prohibiting payment to officers filling vacancies arising during a senatorial session.²⁹ Only in 1940 did Congress amend the statute to permit payment to such appointees under certain circumstances.³⁰

In 1921, Attorney General Harry M. Daugherty opined that “the Recess” included a month-long intra-session adjournment.³¹ Like Wirt’s opinion, Daugherty’s opinion was devoid of Founding-era citation and emphasized instead the practical convenience of the Executive.³² Since then, Presidents have maintained that “the Recess” encompasses intra-session breaks.

Judicial Precedent

The Supreme Court has addressed the Recess Appointments Clause only once—in National Labor Relations Board v. Noel Canning (2014).³³ As predicates for deciding on the validity of three recess appointments, the Court examined the following issues:

• Can “the Recess” include intra-session adjournments?
• Does a vacancy “happen” only when it arises or during the entire time it exists?
• Is the Senate in recess if its session is only “pro forma?”
• If the constitutional phrase “the Recess” refers to intra-session adjournments, does it include all or only some of them?
• If it refers only to some intra-session adjournments, what distinguishes those that qualify as “the Recess” from those that do not?

Writing for a 5-4 majority, Justice Stephen G. Breyer found that “the Recess” was ambiguous. This finding was based largely on lay usage of the term “recess” and inaccurate interpretations of historical events.³⁴ Nevertheless, it opened the way for the Court to rely on elements of post-ratification practice to conclude that “the Recess” encompassed intra-session adjournments. The same majority ruled that the “exist” view of “happen” was “a permissible reading of a doubtful phrase.”³⁵ On the basis of this second reputed ambiguity, the Court again examined post-ratification practice and concluded that the “exist” view was more consonant with that practice.

The majority further determined that (1) a pro forma session of the Senate does not qualify as “the Recess,” (2) “the Recess” encompasses only adjournments of more than three days, and (3) “the Recess” presumptively includes only adjournments of more than ten days. These determinations led the Court to void the challenged vacancy appointments.

Justice Antonin Scalia wrote for the four-person minority. He concurred with the invalidation of the vacancy appointments at issue in the case but enlisted both Founding-era and subsequent practice to show that “happen” means “arise” and “the Recess” includes only inter-session adjournments.

Open Questions

• What events can rebut the Supreme Court’s presumption in Noel Canning that an adjournment shorter than ten days does not qualify as “the Recess of the Senate?”
• Does the recess appointment of Article III judges irreparably conflict with the Constitution’s injunction that judges “shall hold their Offices during good Behaviour?”

1. Conn. Charter (1662); Ga. Charter (1732). ↩︎
2. Del. Const. of 1776, art. 21; Ga. Const. of 1777, art. XXI; Md. Const. of 1777, art. XIII; Mass. Const. of 1780, pt. 2d, art. IV; Pa. Const. of 1776, § 19; S.C. Const. of 1778, art. XXXI. ↩︎
3. 1783 Mass. Acts & Resolves, c. 12, at 523. ↩︎
4. 32 J. Cont. Cong. 314, 317 (July 11, 1787). ↩︎
5. Mass. Const. of 1780, pt. 2d, art. VI; 1783 Mass. Acts & Resolves, supra; Pa. Const. of 1776, § 19; 32 J. Cont. Cong., supra at 317. ↩︎
6. Jean-Louis DeLolme, The English Constitution 309 (4th ed. 1784). ↩︎
7. Robert G. Natelson, The Origins and Meaning of “Vacancies that May Happen During the Recess” in the Constitution’s Recess Appointments Clause, 37 Harv. J.L. & Pub. Pol’y 199, 227–28 (2014). This article is the source for material in this essay that is not otherwise footnoted. ↩︎
8. Art. I, § 3, cl. 2; Natelson, supra at 230–32. ↩︎
9. Md. Const. of 1776, art. XLI. ↩︎
10. 1783 Mass. Acts & Resolves, c. 12, at 523. ↩︎
11. Natelson, supra at 207–13; Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487 (2005). ↩︎
12. Natelson, supra at 213–27. ↩︎
13. Md. Const. of 1776, art. XLI. ↩︎
14. Del. Const. of 1776, art. 21; S.C. Const. of 1776, art. XXXI. ↩︎
15. Ga. Act Electing and Empowering Delegates, Feb. 10, 1787, in 1 DHRC 204. ↩︎
16. 3 Farrand 562–63; id. at 569–70. ↩︎
17. Art. II, § 2, cl. 2. ↩︎
18. 2 Farrand 540. ↩︎
19. Art. I, § 2, cl. 4; Art. I, § 3, cl. 2. ↩︎
20. Edmund Randolph, Reasons for Not Signing the Constitution, Dec. 27, 1787, in 8 DHRC 260, 273. ↩︎
21. “A Native of Virginia,” Observations upon the Proposed Plan of Federal Government, April 2, 1788, in 9 DHRC 655, 682. ↩︎
22. “Cato,” State Gazette of S.C., Nov. 26, 1787, in 27 DHRC 44, 46. ↩︎
23. “Cato V,” N.Y.J., Nov. 22, 1787, in 14 DHRC 184, 185. ↩︎
24. “A Native of Virginia,” supra. ↩︎
25. Remarks of Thomas McKean at the Pennsylvania Ratifying Convention, Dec. 10, 1787, in 2 DHRC 533, 537; Remarks of James Madison at the Virginia Ratifying Convention, Jun. 14, 1787, in 10 DHRC 1294, 1296; “A Federalist,” Balt. Gazette, Jan. 18, 1788, in 11 DHRC 184, 185. ↩︎
26. Edmund Randolph, Opinion on Recess Appointments (July 7, 1792), https://perma.cc/H47Z-2XL4. ↩︎
27. 1 Op. Atty. Gen. 631 (1823). ↩︎
28. S. Rep. No. 37-80 (3d Sess. 1863), cited in Rappaport, supra at 1543 n.173. ↩︎
29. Rappaport, supra at 1543. ↩︎
30. Id. ↩︎
31. 33 Op. Atty. Gen. 20 (1921). ↩︎
32. Id. ↩︎
33. 573 U.S. 513 (2014). ↩︎
34. 573 U.S. at 577 n.2 (Scalia, J., concurring); Natelson, supra, at 222 n.120. ↩︎
35. 573 U.S. at 540. ↩︎