When is the Senate in recess for purposes of the Recess Appointments Clause?

• Author: Carrier, Michael A.

INTRODUCTION

Two weeks before leaving office, President George Bush found himself in a quandary. The President wanted the Board of Governors of the U.S. Postal Service(1) to withdraw a lawsuit it had filed.(2) The Board, however, by a six-to-five margin, refused to comply with his demands.(3) The President then threatened to dismiss the governors who supported the suit,(4) but the U.S. District Court for the District of Columbia granted an injunction preventing Bush from removing any of the governors.(5)

The President nonetheless continued to pursue his goal. He waited until a recess of the Senate(6) to replace one of the governors who supported the suit, Crocker Nevin, with Thomas Ludlow Ashley,(7) a longtime friend who Bush believed would oppose the suit.(8) Bush thus skirted the usual procedure for presidential appointments, in which the Senate must confirm the President's nominee,(9) by making a "recess appointment," which does not require confirmation by the Senate. The Recess Appointments Clause(10) of the Constitution allows the President unilaterally to fill vacancies in federal offices(11) that happen(12) during Senate recesses, thereby creating commissions that last until the end of the next nine-to-twelve-month session of the Senate.(13) Justifying his attempt to employ this power, the President argued that Nevin's "holdover"(14) position on the Board constituted a "vacancy" that he could fill by making a recess appointment.(15) The U.S. District Court for the District of Columbia, however, invalidated Bush's appointment, holding that no vacancy existed on the Board, and therefore, that Bush could not make a recess appointment.(16)

Although the court ultimately struck down Ashley's appointment, the controversy highlights presidents' increasing use of the Recess Appointments Clause as a means of evading the requirement that the Senate confirm federal officers.(17) The Framers adopted the clause apparently to keep the government functioning during the six-to-nine month recesses in which Senators were dispersed throughout the country and were unable to convene to provide their advice and consent.(18) Throughout history, presidents have used the clause almost exclusively during intersession recesses, which are recesses occurring between two formal sessions of a Senate.(19) Intersession recesses have varied in length from the six-to-nine-month recesses of the early nineteenth century to the one-to-three-month recesses of the late twentieth century.(20) On the other hand, presidents have only recently made appointments during intrasession recesses, which are recesses occurring within a session of the Senate.(21) Intrasession recesses -- occurring most frequently in the past twenty-five years(22) -- typically last one to four weeks.(23) Recent presidents have more willingly made recess appointments during increasingly shorter intrasession recesses,(24) culminating in Bush's appointment of Ashley(25) during a twelve-day recess.(26)

These intrasession recess appointments reveal a disturbing trend. There is a less urgent need to fill vacancies that exist during brief recesses because the President can rely on the standard appointment process,(27) which occurs when the Senate promptly reconvenes. Moreover, during some recesses, Senate committees meet to consider presidential nominations.(28) Finally, even if a vacancy existed on the Postal Board of Governors, Bush could have utilized the usual method of appointment rather than attempting to avoid the Senate's advice and consent with a recess appointment.(29)

This Note argues that courts should interpret the Constitution to allow the President to make recess appointments only during intersession recesses of the Senate. Part I chronicles the history of presidential recess appointments. This Part highlights the increasing frequency of, and questionable need for, intrasession recess appointments in the past twenty-five years. Part II examines the text of the Recess Appointments Clause and the intentions of the Framers regarding the scope of the clause and the appointment power in general. This Part argues that the text and the Framers' intentions indicate that the President's power to make recess appointments should be limited to intersession recesses. Part III focuses upon interpretations of the clause by actors in the political sphere, namely the Senate and presidential legal advisors. Although these actors are arguably entitled to some deference by the judicial branch, this Part argues that executive and legislative opinions issued over the years fail to undermine the textual analysis limiting the President's recess appointment power to intersession recesses. Finally, Part IV contends that allowing the recess appointment power even during long intrasession recesses would not further the purposes of the clause. This Part reasons that Senate committees' consideration of nominations during recesses ensures the continuance of the advice-and-consent process and that statutes provide an alternative means of filling vacancies in the executive branch. Such mechanisms highlight the diminished need for a clause to fill vacancies during recesses, and counsel against invoking the clause during intrasession recesses. This Note concludes that the purposes of the Recess Appointments Clause support the text in limiting the President's recess appointment power to intersession recesses.

1. HISTORICAL PRACTICE OF RECESS APPOINTMENTS

   Intrasession recess appointments are a relatively new phenomenon, occurring almost exclusively since 1947.(30) This Part traces presidents' use of the clause and notes the types and lengths of the recesses in which presidents have invoked the power.(31) Section I.A shows that between the years 1789 and 1946, presidents used the power almost exclusively during intersession recesses, mostly of lengthy duration. Section I.B focuses upon recess appointments from 1947 to the present. This section demonstrates that recent presidents have invoked the clause with greater frequency during intrasession recesses, and during increasingly short recesses.

   1. Recess Appointments 1789-1946

      From the nation's founding until the mid-nineteenth century, Congress met for largely uninterrupted sessions separated by recesses of six to nine months.(32) During these intersession recesses, positions in the federal government would become available as former officers retired, died, or otherwise left office. Because the President could not utilize the standard means of appointment when Senators were dispersed throughout the country and were unable to provide their advice and consent, he needed an alternative means of appointment so that vacancies in federal offices would not result in governmental paralysis.(33) By allowing presidents unilaterally to fill vacancies in federal offices, the Recess Appointments Clause offered such an alternative. During the late eighteenth and early nineteenth centuries, presidents utilized the recess appointment power to fill offices such as judge, marshal, and collector.(34) The practice of making recess appointments during the lengthy intersession recesses continued throughout the nineteenth century.(35)

      While the Senate took one intersession recess each year in this period, it took only three intrasession recesses before 1857. In 1800, 1817, and 1828, the Senate took a five-to-seven-day intrasession recess at the end of December.(36) Beginning in 1863, the Senate started taking annual intrasession recesses of approximately two weeks from the end of December through the beginning of January.(37) Despite the increase in intrasession recesses, presidents continued to make recess appointments almost exclusively during the intersession recess. Indeed, the only documented intrasession recess appointment in the nineteenth century occurred when President Andrew Johnson appointed Samuel Blatchford to a district court judgeship in 1867.(38) Except for a few lengthy intrasession recesses during the 40th Congress,(39) the pattern of long intersession and short intrasession recesses continued into the early twentieth century.(40)

      Although presidents in the nineteenth and early twentieth centuries made almost no intrasession recess appointments, President Theodore Roosevelt stirred up controversy in the Senate and the media when he filled vacancies during what he called a "constructive recess." This recess allegedly occurred during the "infinitesimal" period between two consecutive sessions of the Senate.(41) The Senate ended a special session on December 7, 1903, and, with "one fall of the gavel," immediately commenced a regular session of the 58th Congress.(42) Roosevelt claimed that a split second separated the two sessions, thus creating a recess which allowed him to make recess appointments. The Senate Judiciary Committee responded to this action by preparing a report on what constituted a recess of the Senate.(43) In its report, the Committee rejected the notion of a constructive recess and concluded that recesses occurred only when the Senate was not sitting either as a branch of Congress or in extraordinary session to perform executive duties.(44) Although the Committee's report did not bind future presidents, it highlighted the political backlash that could result from such appointments.

      During the early twentieth century, presidents continued to invoke the Recess Appointments Clause almost exclusively during intersession recesses to appoint federal officials.(45) Only one documented intrasession recess appointment occurred in this period. In 1928, President Calvin Coolidge appointed John Esch as commissioner of the Interstate Commerce Commission during a thirteen-day recess at the beginning of the 70th Congress.(46) Commissioner Esch and Judge Blatchford(47) represent the only documented intrasession recess appointees of the nation's first 150 years.

   2. Recess Appointments 1947-Present

      Frequent presidential use of the recess...