The law: can the president recess appoint a vice president?

Author:Brownell, Roy E., II

While the constitutional aspects of the president's recess appointment power have been scrutinized closely over the years (Herz 2005; Note 1957; Rappaport 2005), the question of a president unilaterally and temporarily installing a vice president through the Twenty-Fifth Amendment has received no full-length treatment in the academic literature. (1) Notwithstanding this scholarly inattention, the issue warrants close examination in light of the great importance the vice presidency has come to assume in American government (Goldstein 1982, 3); the gradual enhancement of the president's recess appointment power over the course of two centuries (Rappaport 2005, 1490-91); and the increasing regularity with which presidents have taken such actions in recent decades (Black et al. 2011, 577). Thus, the possibility of a vice presidential recess appointment represents a new frontier for the potential expansion of this presidential power; not unlike President Barack Obama's recent and novel exercise of recess appointment power during a pro forma session of the Senate (Office of Legal Counsel 2012, 4; see also Meese and Gaziano 2012). Upon review of both sides of the issue, this article concludes that the legal arguments in favor of vice presidential recess appointments fall well short of the mark and that such a step should not be attempted by a future president.

Relevant Constitutional Text and History

Under article II of the U.S. Constitution, the president makes appointments of senior executive branch officials, ambassadors, and federal judges subject to the advice and consent of the Senate. Section 2, clause 2 reads that "[the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States." When the Senate is in recess, however, the president has the authority to make "recess appointments." In this regard, article II 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." As a result, not infrequently the president will unilaterally install an official during a Senate recess with the individual serving until the conclusion of the next session of Congress.

At the same time, under section 2 of the Twenty-Fifth Amendment, the president has authority to nominate a vice president subject to the approval of both houses of Congress. The Constitution in this instance requires that "[w]henever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both houses of Congress."

At the outset, it bears noting that there is no judicial or political precedent to follow regarding whether the president may recess appoint a vice president. In U.S. history, only two individuals have ever been elevated to the vice presidency under the Twenty-Fifth Amendment. President Richard Nixon nominated Gerald Ford to be his vice president in 1973 (Nixon 1975, 867-70), and President Ford in turn nominated Nelson Rockefeller to serve in the same capacity the very next year (Ford 1975, 28-30). Both Ford and Rockefeller were confirmed by both houses of Congress, and neither was nominated during a congressional recess. (2)

Arguments against the President Having the Authority to Recess Appoint a Vice President

Textual Differences between Article II and the Twenty-Fifth Amendment

A comparison of article II and the Twenty-Fifth Amendment reveals that there are at least six textual reasons why the president cannot lawfully recess appoint a vice president. Taken all in all, these textual considerations reveal that the terminology of article II and that of the Twenty-Fifth Amendment are fundamentally different and that this divergence clearly demonstrates two distinct processes at work (Bloom 2009, 39; Harmelin v. Michigan (1991, 978 n.9)).

An initial contrast in language is demonstrated in the description of legislative branch review of the nominee. Article II uses the term "advice and consent"; the Twenty-Fifth Amendment uses "confirmation." These different expressions connote separate concepts, and this is affirmed by the amendment's legislative history. The amendment's Senate sponsor, Birch Bayh, made clear his views on the subject during an appearance before the House Committee on the Judiciary in 1965. He testified that

I might say one word about the thinking of the [Senate Judiciary] committee in this section 2 because we had a rather extensive debate on whether we should change the language of the bill that the chairman and I have cosponsored in which we say by confirmation of both Houses, to read the advice and consent of both Houses.

Senator [Sam] Ervin, who is a rather distinguished constitutional scholar, was very strong in his feeling--very persuasive I felt--that the constitutional precedent of advice and consent ... enables presidential nominees to function in office in the absence of any advice and consent of the Senate. It is our feeling that certainly the Members of the Congress would not want the Vice President to assume the powers and duties of the office of Vice President in the absence of some advice and consent so that he might in fact ... be[come] the President before any of us in Congress would have any voice in this matter whatsoever. So we felt the word "confirmation" in this case was better than the use of the words "advise and consent" because of the implications that might be involved by past precedent. (U.S. Congress 1965a, 45)

Thus, Bayh believed that recess appointments of vice presidents were not authorized due to the Senate committee's purposeful inclusion of the term "confirmation" and its purposeful omission of "advice and consent." Senator Ervin obviously felt the same way.

Consequently, in the Senate, the sponsor of the amendment and the upper chamber's preeminent authority on constitutional matters (Editorial 1972, A18) worked to ensure that the Twenty-Fifth Amendment's "confirmation" process was distinct from article II's "advice and consent" requirement and, therefore, that the president was prevented from temporarily installing a vice president on his own accord.

From an outside advocacy standpoint, the American Bar Association (ABA) was a driving force behind adoption of the amendment (Bayh 1968, 27, 34, 42-43). A key member of the ABA in its efforts was John Feerick (Bayh 1968, 49, 68). Feerick takes the same view as Bayh and Ervin regarding use of the terms "confirmation" and "advice and consent." He has written with respect to the language of section 2 that

the coupling of "nomination" with "confirmation" instead of the "advise and consent" language of article II was designed to ensure that a nominee cannot act as Vice President pending congressional confirmation. Consequently, if a vacancy should occur when Congress is out of session, it could not be filled until the next regular session or at a special session.... confirmation is essential to filling a vice presidential vacancy. (Feerick 1992, 195-96; internal citations omitted)

Legislative history therefore indicates that the understanding of the major players behind the amendment was that both houses had to vote for the vice president as reflected in part by choice of the term "confirmation" in place of "advice and consent." This cuts against the president having authority to bypass Congress and unilaterally install his nominee.

A second important linguistic departure from article II involves the term "appoint." (3) While article II uses a variation of the expression on three separate occasions, no reference to "appoint" or "appointment" is made whatsoever in the Twenty-Fifth Amendment. (4) The term "appointment" of course carries with it a tie to Senate--not bicameral--involvement in the process of filling vacancies) Nor does the word "recess" appear anywhere in the Twenty-Fifth Amendment. These omissions would greatly complicate an effort to contend that the Twenty-Fifth Amendment permits the president to recess appoint a vice president.

The unique nature of the vice presidential confirmation process is further evinced by a third textual difference: inclusion of the House of Representatives in section 2 of the Twenty-Fifth Amendment (Estate of Rockefeller v. Commissioner of Internal Revenue (1985, 271). Article II provides for one layer of legislative branch review of a nominee (i.e., Senate advice and consent). The Twenty-Fifth Amendment, on the other hand, provides for two (i.e., House and Senate confirmation) (Feerick 1965, 168). The House's role in providing an additional layer of legislative branch review makes it all the more compelling for the amendment to be interpreted as prohibiting the president from temporarily and unilaterally installing a vice president. Otherwise, the result would be that, instead of two houses inspecting the nomination, none would.

Legislative history bears this out. Peter Rodino, a senior member of the House Judiciary Committee at the time and later chairman of the panel, stated that "[t]he nominee would take office as Vice President only after being confirmed by a majority vote of both Houses of Congress." (U.S. Congress 1965b, 7955); emphasis added). Senator Alan Bible similarly commented, "To those who argue that Senate confirmation alone would be adequate, I must point out that we are dealing with an elective office, not an appointed one as in the case of a Cabinet officer. Both Houses should have a vote" (Bayh 1968, 150). As a consequence, the explicit two-house requirement weighs against reading a recess appointment power into the Twenty-Fifth Amendment.

Moreover, the rationale behind bicameral approval further undermines an argument in favor of presidential authority to temporarily install a vice...

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