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The Recess Appointments Clause, Original Vacancies and Attorney General Wirt

As discussed in my prior post on this subject, it seems to have been the prevailing view in the 1814 Senate that the President could not use the Recess Appointments Clause to fill a newly created statutory office, absent explicit authority in the law to do so. This view could rest on three different grounds. First, it might be argued that a newly created office isn’t “vacant” because the term “vacancy” implies that the office has previously been filled. Second, if a newly created office is considered vacant, the vacancy may be said to happen when the statute creating the office becomes law, which will normally be when Congress is in session. Finally, it may thought that any vacancy in an newly created office doesn’t “happen” at all because it is not caused by accidental circumstances like death or resignation.

Many years before the 1814 debate, Alexander Hamilton stated that the RAC was inapplicable to newly created offices on both the first and third grounds. In 1796, Hamilton advised President Washington that the RAC could not be used to create and fill a new diplomatic position during the recess of the Senate. See David Currie, The Constitution in Congress: The Federalist Period 1789-1801 154 n. 168 (1997). In a 1799 letter to the Secretary of War, Hamilton reiterated his view that “Vacancy is a relative term, and presupposes that the Office has been once filled.” Id. He also argued that “the phrase ‘which may have happened’ serves to confirm this construction” because “it implies casualty- and denotes such Offices as having been once filled, have become vacant by accidental circumstances.” See Michael Rappaport, The Original Meaning of the Recess Appointments Clause 31-32 (2005).

In 1822, the Senate Committee on Military Affairs reached the same conclusion on the second and third grounds. It distinguished between “original vacancies,” i.e., “offices created by law, and not before filled,” and vacancies that “happen” during the recess of the Senate. The latter “evidently means vacancies occurring from death, resignation, promotion or removal; the word happen must have reference to some casualty not provided for by law.” The Committee also pointed out that the Senate was in session when the laws establishing the offices in question were passed, Thus, the President had no power to fill these offices under the RAC. 38 Annals of Cong. 489, 500 (1822).

The Committee contended that its position was supported not only by the language of the Constitution, but by practice and precedent:

The committee believe[s] this is the fair construction of the Constitution, and the one heretofore observed. For many instances have occurred where offices have been created by law, and special power was given the President to fill those offices in the recess of the Senate; and no instance has before occurred, within the knowledge of the committee, where the President has felt himself authorized to fill such vacancies, without special authority by law.


The Committee’s position depended partially, but not completely, on the notion that the President’s power under the RAC was limited to vacancies that occurred or arose while the Senate was in recess. As Professor Rappaport demonstrates in the above-referenced article, this was the dominant if not universal understanding of the RAC at the time.

In 1823, however, Attorney General William Wirt issued an opinion rejecting this position. Wirt addressed the question of filling a vacancy created as the result of the statutory expiration of the commission of the navy agent in New York. Although the vacancy arose while the Senate was in session, Wirt concluded that the President could fill the vacancy once the Senate was in recess. He begins with an analysis of the word “happen”:

The most natural sense of this term is “to chance”- to fall out- to take place by accident.” But the expression seems not perfectly clear. It may mean “happen to take place:” that is, “to originate:” under which sense, the President would not have the power to fill the vacancy. It may mean, also, without violence to the sense, “happen to exist;” under which sense, the President would have the right to fill it by his temporary commission. Which of these two senses is to be preferred? The first seems to me most accordant with the letter of the constitution; the second, most accordant with its reason and spirit.

1 Op. Atty Gen. 631 (1823) (italics in original).

Wirt gives a number of examples to show that the more literal interpretation of the RAC would be contrary to its reason and spirit. He starts with an example very similar to that offered by Senator Horsey in 1814- a vacancy occurs in a distant part of the country on the last day of the Senate’s session, but word does not reach the President until the Senate is in recess. A literal construction of the RAC would mean that the office could not be filled until the Senate’s next session “however ruinous the consequences to the public.”

Wirt then gives other examples of events that might prevent the Senate from performing its advice and consent function: “the sudden dissolution of that body by some convulsion of nature; the falling of the building in which they hold their sessions; a sudden and destructive pestilence, disabling or destroying a quorum of that body; such an invasion of the enemy as renders their reassemblage elsewhere impracticable or inexpedient; and a thousand other causes which cannot be foreseen.” He also suggest that a vacancy may “happen to exist” as the result of the Senate “rejecting a nomination by the President in the last hour of their session, and inadvertently rising before a renomination can be made.” (This last rather dubious example appears to be based on the actual circumstances Wirt was addressing).

Wirt’s conclusion that the RAC power reaches all vacancies that “happen to exist” during a Senate recess is itself ambiguous. It may be read to embrace all vacancies that simply exist during a recess. But the examples given by Wirt all involve some element of chance, accident or inadvertence. Thus, Wirt’s phrase “happen to exist” might be better read as “exist by happenstance.” See Edward Hartnett, Recess Appointments of Article III Judges: Three Constitutional Questions, 26 Cardozo L. Rev. 377, 402 n. 110 (2005) (“Wirt’s view seems to reflect some sense that ‘happen’ involves an element of chance or fortuity.”).

It is also noteworthy that Wirt does not address or contradict the position taken by the Senate Committee on Military Affairs just the previous year that the RAC does not extend to a newly created office. Such an original vacancy does not “exist by happenstance” and therefore arguably would not fall within the rationale of Wirt’s opinion. Put another way, Wirt’s opinion contradicts only the second, but not the first or third, ground for concluding that original vacancies are outside the scope of the RAC.

Furthermore, it is difficult to see how the “reason and spirit” of the RAC requires that it apply to original vacancies. Unlike an unexpected vacancy in an existing office, an original vacancy should not disrupt government operations. Congress is obviously aware that a newly created office will start out vacant. If Congress wishes, it can delegate the power to fill the office temporarily. Alternatively, it may provide that an existing officer perform the functions of the new office until it is filled through advice and consent. But even if Congress chooses to leave the office entirely dormant until the advice and consent process is complete, there is little reason to fear the type of “ruinous consequences” Wirt was concerned about.

Whatever Wirt intended when he wrote his opinion, it seems clear that it did not change the Senate’s view with regard to original vacancies. As explained in the 1829 edition of Rawle’s constitutional treatise:

It would be improper to pass over the construction given by the senate to the power of appointing during their recess. It has been held by that venerable body, that if new offices are created by congress, the president cannot after the adjournment of the senate, make appointments to fill them. The vacancies do not happen during the recess of the senate.

 William Rawle, A View of the Constitution of the United States, ch. IVX (2d ed. 1829); see also 3 Joseph Story, Commentaries on the Constitution of the United States 416, 417 (3d ed. 1858).

Moreover, when the question of using the RAC to fill original vacancies was subsequently presented in the executive branch, then-Attorney General John Mason evidently did not consider Wirt’s opinion controlling, as he did not cite it in concluding that these vacancies could not be filled during the recess of the Senate. 4 Op. Atty Gen. 361, 365 (1845). Professor Hartnett observes that “Mason was addressing [only] the appointment of the officers to offices that had just been created, a question that involves whether the word ‘happen’ requires some casualty not provided for by law.” Hartnett, 26 Cardozo L. Rev. at 403 n.114.

Thus, the question of filling original vacancies under the RAC must be viewed as distinct from the general question of whether the President may fill vacancies that “happen to exist” during the recess. As a matter of constitutional text, purpose and interpretative practice, the rationale for filling original vacancies under the RAC would seem to be considerably weaker than the argument for using the Clause to fill vacancies in existing offices. The significance of this conclusion will be explored in future posts.

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