Why non-originalism does not justify departing from the original meaning of the recess appointments clause.

Author:Rappaport, Michael B.
Position::Continuation of III. The Actual Price B. The Type of Recess Issue: 1789 to 1940 through Conclusion, with footnotes, p. 931-972
 
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  1. The Johnson Recess Appointments

    In the nearly eighty years from 1789 until the Johnson recess appointments in 1867, there were no intrasession recess appointments. (100) The practice during this period is important in and of itself. While this practice is often dismissed on the ground that there were no long intrasession recesses during this period that would have allowed Presidents to make intrasession recess appointments, that is not really true. From 1857 until 1867, there were eight different twelve- to fourteen-day intrasession breaks over the Christmas holiday, and no recorded recess appoint merits. (101) Since Justice Breyer concluded that intrasession recess appointments can be made for breaks of at least 10 days, this practice counts against his version of the intrasession view.

    In 1867 and 1868, President Andrew Johnson made a cluster of recess appointments that have often been thought to be intrasession recess appointments. These alleged intrasession recess appointments occurred in extraordinarily unique circumstances. For almost 80 years, the Congress had consistently followed a pattern of holding two annual sessions, with a single long intersession recess each year. (102) In 1867 and 1868, the pattern briefly changed. In each year, Congress convened a session and met for a period of time. But instead of simply taking a recess until the next session began in December, Congress instead chose to take a break for a period and then to schedule additional meetings during the remainder of the year. These breaks between the meetings have been thought to be intrasession recesses, but as I argue below, it is not at all clear that they were. The alleged intrasession recess appointments can be usefully classified into three groups.

    1. The First Set of 1867 Recess Appointments

      Let me begin with the first set of 1867 recess appointments. In 1867, Congress convened in the beginning of March, but then adjourned on March 30 until July 3. This intended nintety-two day break was quite unusual, but did not occur. President Johnson called the Senate into session on April 1. This special session continued until April 20, when the Senate took a recess until July 3. (103) During this seventy-three day break between April 20 and July 3, Johnson made twenty recess appointments. (104)

      Some commentators have argued this legislative break was an intrasession recess on the ground that the Congress had not ended the session. There is, however, an alternative way of viewing the matter. While the Senate may have taken an intrasession recess on March 30, it held a separate special session in April, and it ended that session on April 20 with an adjournment sine die. The resulting break might have been an intersession recess.

      It appears that this was the first time in the history of the nation where a special session had occurred during the period when an ordinary session had been planned. (105) Thus, it was not clear how to analyze the situation. On the one hand, it might be thought that the first session of the 40th Congress (that had been adjourned on March 30 for the intrasession break) continued through the entire time of the special session; then, when the special session ended, the first session continued. Under this view, there was no genuine intersession recess from April 20 to July 3 and therefore no recess appointment could be made under the intersession view.

      On the other hand, it might be thought that the end of the special session on April 20 constituted a genuine intersession recess that allowed recess appointments to be made under the intersession view. Under this view, the special session would have ended the ordinary session that had begun at the start of March. This position was previously taken by Thomas Jefferson in his influential Senate Manual and therefore is likely to have had a significant effect on both the Senate and the President. (106) Jefferson wrote: "What then constitutes a session ... The constitution authorizes the President 'on extraordinary occasions, to convene both Houses or either of them.' I. 3. If convened by the President's proclamation, this must begin a new session, and of course determine the preceding one to have been a session." (107) The idea seems to be that two sessions cannot occur at the same time.

      Although I have been inclined toward the former view, the point is that it is not clear what people at the time believed. If a significant percentage of political actors in the political branches believed that the intersession recess allowed the President to make a recess appointment--a not unlikely circumstance given Jefferson's authority and the absence of objections from the Senate--these recess appointments would be hard to view as having been taken under the intrasession view. (108) Instead, it would be an intersession recess appointment reflecting the special circumstances at the time.

    2. The First Set of 1868 Recess Appointments

      Consider now the first set of 1868 recess appointments. The second session of the 40th Congress began on December 2, 1867. After the Senate acquitted Johnson in his impeachment trial, Congress adjourned for fifty-six days from July 27, 1868 to September 21, 1868. (109) During this recess, Johnson made sixteen additional recess appointments. (110)

      During this recess, Attorney General Evarts was asked whether the President could make a recess appointment for a collector of customs concerning a vacancy that had arisen during the session. Evarts followed the prior Attorney General decisions that had adopted the exist view. (111) But, significantly, Evarts said nothing about the fact that this appointment was made during what some people have regarded as an intrasession recess. He also said nothing about it in two other opinions he issued shortly thereafter. (112) Nor do we have any record of objections made by a Congress that had impeached Johnson and therefore would have been quite willing to criticize him for the exercise of a new power. (113)

      There is a strong reason to believe that these recess appointments were understood to be intersession recess appointments. When the Senate took its recess on July 27, the Congressional Globe stated that "[t]he president pro tempore announced that the hour of twelve o'clock, fixed by the resolution of the two Houses for closing the present session of Congress by a recess, had arrived, and declared the Senate, in pursuance of the said resolution, adjourned until the third Monday in September next a twelve o'clock." (114)

      This statement was significant. When the Senate adjourned for an intrasession recess, it would typically use different language. For example, on March 30, 1867, when the Senate intended to take a long intrasession break, it stated: "[t]he hour fixed by concurrent resolution of the two Houses for that purpose having arrived, the Senate stands adjourned until the first Wednesday of July, at noon." There was no language about "closing the present session" or even use of the term "recess." (115)

      This language on July 27 might reasonably have led the Attorney General and others to conclude that the Senate was ending its session. This would explain much about the Attorney General's three decisions written during this recess. The Attorney General did not even discuss the issue of intrasession recesses, even though this might have been an unprecedented action that required justification. Moreover, the opinions appear to have understood the Senate's recess as having ended the session. In each of the three opinions, the Attorney General spoke of the office becoming "vacant during the late session of the Senate." (116)

      As with the first set of 1867 recess appointments, it is by no means clear that this action actually rendered the recess an intersession recess. It is true that the announcement by the President pro tempore seemed to clearly signify an intent to end the session and that would, at least if joined by the House, have actually ended the session. But things are more complicated. First, despite the President pro tempore's announcement, the House did not make a similar statement, announcing only that "by the concurrent resolution of both Houses of Congress the House of Representatives now takes a recess until Monday, September 21." (117) Second, the President pro tempore's action may not have been authorized by the concurrent resolution, which stated that the House and Senate "adjourn their respective Houses until the third Monday of September; and on that day, unless it be then otherwise ordered by the two Houses, they further adjourn their respective Houses until the first Monday in December, 1868." (118) Finally, when the Senate met again on September 21, some of the Senators appeared at pains to note that their prior adjournment had not ended the session, without, however, referring to the President pro tempore's statement to the contrary. (119)

      But whether or not the Senate's action actually ended the session, the point is that it might have been easy for the President and the Attorney General, as well as members of the Senate, to have believed that it had done so. Thus, these recess appointments might be best understood either as intersession recess appointments or as having been made under the assumption that they were intersession recess appointments. In either case, it is hard to argue that they are part of a practice of intrasession recess appointments.

    3. The Second Set of Recess Appointments in 1867 and 1868

      While there are strong arguments that the above thirty-six recess appointments either conformed to or were reasonably thought to conform to the intersession view, there are two sets of recess appointments made during this period that probably did not follow the intersession view. First, in 1867, after taking the recess following the special session called by the President, Congress convened on July 3. (120) This session lasted until July 20, when Congress recessed until...

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