Clause 3. 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.
Setting out from the proposition that the very nature of the executive power requires that it shall always be “in capacity for action,” Attorneys General early came to interpret the word “happen” in the phrase “all vacancies that may happen” to mean “happen to exist,” and long continued practice securely establishes this construction. It results that whenever a vacancy may have occurred in the first instance, or for whatever reason, if it still continues after the Senate has ceased to sit and so cannot be consulted, the President may fill it in the way described.565 But a Senate “recess” does not include holidays, or very brief temporary adjournments,566 while by an act of Congress, if the vacancy existed when the Senate was in session, the ad interim appointee, subject to certain exemptions, may receive no salary until he has been confirmed by the Senate.567
565 See the following Ops. Atty. Gen.: 1:631 (1823); 2:525 (1832); 3:673 (1841); 4:523 (1846); 10:356 (1862); 11:179 (1865); 12:32 (1866); 12:455 (1868); 14:563 (1875); 15:207 (1877); 16:523 (1880); 18:28 (1884); 19:261 (1889); 26:234 (1907); 30:314 (1914); 33:20 (1921). In 4 Ops. Atty. Gen. 361, 363 (1845), the general doctrine was held not to apply to a yet unfilled office which was created during the previous session of Congress, but this distinction was rejected in the following Ops. Atty. Gen.: 12:455 (1868); 18:28 (1884); and 19:261 (1889). In harmony with the opinions is United States v. Allocco, 305 F.2d 704 (2d Cir. 1962). For the early practice with reference to recess appointments, see 2 G. HAYNES, THE SENATE OF THE UNITED STATES 772-78 (1938).
566 23 Ops. Atty. Gen. 599 (1901); 22 Ops. Atty. Gen. 82 (1898). How long a “recess” must be to be actually a recess, a question here as in the pocket veto area, is uncertain. 3 O. L. C. 311, 314 (1979). A “recess,” however, may be merely “constructive,” as when a regular session succeeds immediately upon a special session. It was this kind of situation that gave rise to the once famous Crum incident. See 3 W. Willoughby, supra at 1508-1509.
567 5 U.S.C. § 5503. The provision has been on the books, in somewhat stricter form, since 12 Stat. 646 (1863).
Federal judges clearly fall within the terms of the recess-appointments clause. But, unlike with other offices, a problem exists. Article III judges are appointed “during good behavior,” subject only to removal through impeachment. A judge, however, who is given a recess appointment may be “removed” by the Senate’s failure to advise and consent to his appointment; moreover, on the bench, prior to Senate confirmation, she may be subject to influence not felt by other judges. Nonetheless, a constitutional attack upon the status of a federal district judge, given a recess appointment and then withdrawn as a nominee, was rejected by a federal court.568
To be distinguished from the power to make recess appointments is the power of the President to make temporary or ad interim designations of officials to perform the duties of other absent officials. Usually such a situation is provided for in advance by a statute which designates the inferior officer who is to act in place of his immediate superior. But in the lack of such provision, both theory and practice concede the President the power to make the designation.569
568 United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) (en banc), cert. denied, 475 U.S. 1048 (1986). The opinions in the court of appeals provide a wealth of data on the historical practice of giving recess appointments to judges, including the developments in the Eisenhower Administration, when three Justices, Warren, Brennan, and Stewart, were so appointed and later confirmed after participation on the Court. The Senate in 1960 adopted a “sense-of-the-Senate” resolution suggesting the practice was not a good idea. 106 CONG. REC. 18130-18145 (1960). Other cases holding that the President’s power under the Recess Appointments Clause extends to filling judicial vacancies in Article III courts include United States v. Allocco, 305 F.2d 704 (2d Cir. 1962), cert. denied, 371 U.S. 964 (1963), and Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005). In the latter case, however, Justice Stevens, although concurring in the denial of the petition of certiorari, wrote that “it would be a mistake to assume that our disposition of this petition constitutes a decision on the merits of whether the President has the constitutional authority to fill future Article III vacancies, such as vacancies on this Court, with appointments made absent consent of the Senate during short intrasession ‘recesses.’” 544 U.S. at 943.
569 See the following Ops. Atty. Gen.: 6:358 (1854); 12:32, 41 (1866); 25:258 (1904); 28:95 (1909); 38:298 (1935).
Last modified: June 9, 2014