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The Purposes of the Recess Appointments Clause

At first blush, the purpose of the Recess Appointments Clause seems rather obvious- it enables the President to fill offices temporarily when the Senate is not available to provide its advice and consent with regard to a permanent appointment. As Professor Michael Herz observes, the RAC’s purpose seems “sensible, straightforward, and unquestioned.” Yet it may be beneficial to spell out its purposes a little more precisely.

One purpose of the RAC is clearly to keep important offices filled when the public good so requires. As Hamilton wrote in Federalist No. 67, “as vacancies might happen in [the Senate’s] recess, which it might be necessary for the public service to fill without delay, [the RAC] is evidently intently intended to authorize the President, singly, to make temporary appointments ‘during the recess of the Senate, by granting commissions which shall expire at the end of their next session.’”

This purpose is the one stressed by those who urge a broad reading of the RAC. It is worth noting, however, that the Framers did not give the President the power to fill any vacancy when there was an urgent need. The President’s power is limited both as to which vacancies he may fill (ie, those that “may happen during the recess of the Senate”) and as to the duration of the commission that he grants (ie, until the expiration of the Senate’s “next session”). The Framers could have given the President the power to fill all vacancies until such time as a permanent appointment was made, but they did not do so.

A second purpose of the RAC appears to be to provide a clear and objective rule as to when the President may fill vacancies. The President might have been given the power to fill vacancies only where “necessary,” or on “extraordinary occasions,” or “where required by the public good.” But the President’s power is not qualified by any such discretionary judgments; instead, it is bounded by objective factors (or factors that would have seemed objective from the Framers’ perspective). In other words, as Professor Dworkin might put it, the RAC provides a rule, rather than a principle, to guide presidential action.

The first and second purposes imply a third purpose of the RAC- namely to supplement, but not supplant, the primary appointment method set forth in the Appointments Clause. The Framers must have anticipated that there would be situations in which the RAC did not authorize the President to fill vacancies, despite an urgent need, yet they chose to rely on advice and consent (or supplemental statutory authority) to address those situations. Perhaps this reflected a naïve assumption that the Senate would always act with dispatch when circumstances warranted, but is seems more likely that the Framers were willing to bear some risk of unfilled offices in order to protect the primacy of the advice and consent process.

However, because advice and consent appointment requires the cooperation of both the President and the Senate, the connection between any particular interpretation of the RAC and advancing this third purpose is somewhat obscure. A broad interpretation of the RAC may encourage the President to circumvent advice and consent altogether, or it may cause him to be less interested in listening to the Senate’s advice or nominating someone who could easily secure the Senate’s consent. On the other hand, a narrow interpretation of the RAC may discourage the Senate from acting promptly on the President’s nominations, or from giving them appropriate deference. But even this isn’t clear- a narrow RAC could arguably force the Senate to act more responsibly.

This calculus is difficult even if one accepts the widespread view that the Constitution mandates a certain code of conduct by the Senate in response to the President’s nominations. Under this view, the Senate ought to give significant deference to the President’s nominees (or possibly just non-judicial nominees) and each nominee is entitled to an up or down vote within a reasonable period of time.

This view may well be correct, but it is not obviously so. The Appointments Clause does not actually say how the Senate is to exercise its advice and consent function. It does not say that the Senate is required to hold a vote in order to signify its consent, nor that such a vote must be by a simple majority. It does not say that the vote must be held within a certain period of time. It does not say that all nominees (executive, judicial and independent agency) need to be treated in the same fashion. Finally, it says nothing about how the Senate is to provide “advice” on nominees and the relationship, if any, between the Senate’s advice and its consent. (For differing perspectives on these issues, see this exchange between Professors Larry Sollum and Michael Rappaport).

In short, interpreting the RAC in accordance with its purposes is not as simple and straightforward as it might seem. But those purposes provide some guidance in evaluating possible interpretations of the RAC, as I shall discuss in future posts.


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