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Comptroller General Warren and the Origins of the Multi-Session Recess Appointment

As far as I know, Lindsay Warren was a competent attorney who served honorably as the third Comptroller General of the United States. The opinions that he issued in the summer of 1948 regarding the Recess Appointments Clause, however, were not a high point of his career or of the GAO’s protection of the institutional interests of the Congress.

To set the stage, Warren had been a long-serving Democratic congressman from North Carolina who was thrice offered the position of Comptroller General by President Franklin D. Roosevelt. The third time, in 1940, while he was serving as acting House Majority Leader, Warren accepted the offer. Warren’s acceptance of the position was an important signal that Roosevelt, who had previously attempted to eliminate or radically transform the GAO, no longer intended to do so. As Warren would later explain: “Mr. Roosevelt gave up his fight when I accepted this appointment. . . . [I]t is hard to conceive that I would give up a seat in Congress and accept this position in order to preside over the liquidation of the General Accounting Office.”

During World War II, the GAO’s most important function was to audit and investigate military expenditures, particularly the thousands of cost-plus contracts that were awarded in support of the war effort. In this role Warren worked closely with then-Senator Harry Truman, who chaired the Senate Special Committee to Investigate the National Defense Program. For example, in April 1943 Warren informed Truman of kickbacks that were being paid by Detroit-area subcontractors to procure work on these cost-plus defense contracts. Warren later proposed legislation, with Truman’s support, to prohibit such kickbacks.

Warren’s partisan affiliation and his close ties to the Roosevelt and Truman administrations may or may not be relevant to what follows, but they are certainly worth keeping in mind.

Truman became Roosevelt’s Vice President and ascended to the presidency on Roosevelt’s death in April 1945. The Republicans won control of Congress in 1946, ending (or interrupting) the period of Democratic dominance that began with the elections of 1932. The Eightieth Congress assembled on January 3, 1947 and adjourned on July 27, 1947. Rather than adjourning sine die, however, it adjourned to January 2, 1948, and reserved to congressional leaders the authority to call the Congress back into session at an earlier date. It followed the same practice in 1948, adjourning on June 20 until December 31, but authorizing congressional leaders to call members back early.

Given the bitter relations that developed between President Truman and the Republican Congress, one might assume that this practice was designed, as in the Fortieth Congress, as a means of thwarting the exercise of presidential authority. In fact, according to the Senate historian, it reflected a precaution taken in case something happened to the President (there being no Vice President to assume his duties).

To make matters more interesting, in both 1947 and 1948, Truman used his power under Article II, section 3 (“he may, on extraordinary Occasions, convene both Houses, or either of them”) to convene Congress during its extended adjournment. He convened Congress from November 17, 1947 to December 19, 1947, and again from July 26, 1948 to August 7, 1948.

Truman’s Recess Appointments 

On July 8, 1947, Truman nominated Roy Harper to fill a vacancy in a federal district court judgeship. Congress adjourned shortly afterwards (July 27) with the Senate having taken no action on the nomination. On August 7, Truman gave Harper a recess appointment. Although Congress had not adjourned sine die, but rather was scheduled to re-convene on January 2, this action was clearly permitted by the reasoning of the Daugherty opinion.

As already noted, Truman subsequently invoked his authority to convene Congress (primarily to consider his anti-inflation program) on November 17. After Congress adjourned sine die on December 19, Harper’s commission expired (according to a brief filed by the United States in Miller v. U.S.) and he was given a second recess appointment.

There was some uncertainty about whether the November 17 meeting constituted an extra or special session of the Congress, or whether it should be viewed simply as a continuation of the first session of the Eightieth Congress. The issue arose because the Supreme Court had recently adopted amendments to the Federal Rules of Civil Procedure and provided that they would go into effect “3 months subsequent to the adjournment of the first regular session of the Eightieth Congress.” At the request of the Chairman of the Senate Judiciary Committee, the Federal Law Section of the Library of Congress prepared a memorandum, which was placed into the Congressional Record, addressing the question of when the FRCP amendments would become effective.

The memorandum begins with the proposition that the July 27 adjournment itself did not end the first session of the Eightieth Congress, asserting that an “adjournment other than sine die amounts only to a recess or dispersion of Congress for a certain period.” In the ordinary course, therefore, the first regular session of the Eightieth Congress would have ended on January 2, 1948, when it was anticipated that Congress would adjourn sine die.

The ordinary course, however, had been interrupted by Truman’s convening of Congress, and “[t]he question then arises as to the character of this session” for purposes of computing the effective date of the FRCP amendments. The memorandum considers three possibilities: (1) that the convening of Congress by the President started a special session that terminated the first regular session; (2) that the convening of Congress started a special session that suspended, but did not terminate, the first regular session; and (3) that the convening of Congress merely effected a continuation of the first regular session.

As it happens, the first possibility enjoyed the support of a rather pre-eminent authority. In Section LI of his Manual of Parliamentary Practice, Thomas Jefferson states: “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.” As the memorandum notes, “[u]nder this view the convening of Congress on November 17 would commend a special or extra session and at the same time would terminate the first session.”

The Federal Law Section, however, “doubted . . . whether there is any constitutional warrant for [Jefferson’s] view.” Its primary basis for this position was that Jefferson’s view would effectively allow the president to adjourn Congress beyond the narrow circumstances contemplated by the Constitution (i.e., in case of a disagreement between the houses as to the time of adjournment). The memorandum concluded that the better view, which it found to be “most consonant with the Constitution, the law and the precedents,” was that the November 17 convening of Congress should simply be treated as resuming the first regular session of the Eightieth Congress.

Whatever the merits of the Federal Law Section’s position, it seems to have been tacitly accepted by Congress, or at least by the congressional officials responsible for numbering sessions. The meetings of Congress called by Truman in 1947 and 1948 were not designated as special sessions in congressional records. As explained in this historical chart of congressional sessions which is maintained on the Senate website:

President Harry S. Truman called the Congress into extraordinary session twice, both times during the 80th Congress. Each time Congress had essentially wrapped up its business for the year, but for technical reasons had not adjourned sine die, so in each case the extraordinary session is considered an extension of the regularly numbered session rather than a separately numbered one.

The second session of the Eightieth Congress convened on January 6, 1948. In the next several months Truman nominated Edward Tamm, Paul Rao and Samuel Kaufman for federal judgeships (in addition to, I assume but have not confirmed, re-submitting Harper’s nomination). As of the time Congress adjourned on June 20 (again, not sine die but to a date certain, December 31, 1948), the Senate had not confirmed any of these nominees.

On June 22, Truman gave recess appointments to Tamm, Rao and Kaufman. He also gave a third recess appointment to Harper. While Harper’s second recess appointment arguably could be explained by uncertainty regarding the character of the session called by Truman in November 1947, the third recess appointment clearly shows the executive branch’s understanding that the second appointment expired when Congress adjourned on June 20, 1948, even though this adjournment did not end, for parliamentary purposes, the second session of the Eightieth Congress.

Thus, notwithstanding the Daugherty opinion, the Truman administration did not advance the argument that there could be an “intra-session” recess appointment or that such an appointment could last for multiple sessions or multiple recesses. This would change, however, with the intervention of Comptroller General Warren.

Comptroller General Opinion No. 1

On June 30, 1948, the Director of the Administrative Office of the U.S. Courts (AOUSC) wrote to the Comptroller General, requesting guidance on whether the four judicial recess appointees were entitled to be paid a salary under the Pay Act (now codified at 5 U.S.C. § 5503). That statute, you may recall, was originally enacted in 1863 to prohibit generally the payment of salary to a recess appointee if the vacancy filled had existed while the Senate was in session, but was amended in 1940 to permit the payment of salary under certain specified circumstances.  At issue with respect to Truman’s judicial recess appointees was the exception allowing payment of salary:

If, at the time of the termination of the session of the Senate, a nomination for such office, other than the nomination of a person appointed during the preceding recess of the Senate, was pending before the Senate for its advice and consent.

 (emphasis added).

This statutory language is somewhat hard to parse, but it amounts to this: if (1) the President makes a nomination to fill a vacancy during the Senate’s session, (2) the Senate fails to act on the nomination as of the time the session terminates, and (3) the President then fills the vacancy under the RAC during the ensuing recess, the recess appointee may be paid unless the pending nomination is of someone who has already been recess appointed during the preceding recess.

It should be noted that the AOUSC was well aware of the prior year’s controversy regarding the effective date of the FRCP amendments, and its request letter makes reference to the Federal Law Section’s memorandum. The AOUSC acknowledges that “[i]f the present situation is considered analogous [to that considered by the Federal Law Section], and the words ‘termination of the session’ in the [Pay Act] are taken to mean the final adjournment of the present session of the Congress, then the session has not been terminated within the meaning [of the statute], and the exception to the prohibition of payment of salary to interim appointees does not apply.”

Comptroller General Warren responded to the AOUSC on July 16, 1948. The timing is noteworthy because it was exactly one day after President Truman declared, at the Democratic National Convention, that he would again call Congress back into special session. Truman’s announcement was of obvious relevance to the question before Warren since, among other things, it meant that the Senate would soon have another opportunity to confirm or reject the judicial nominees, yet Warren chose to respond without waiting for the Senate to return. Nor is there any indication that he consulted with the Senate or congressional leaders regarding the matter.

Warren’s opinion focuses on the meaning of the phrase “termination of the session” in the Pay Act. He first finds that in a “strict technical sense” the adjournment of June 20 was not the “termination of the session.” He based this conclusion on the fact that “[g]enerally speaking, and in the absence of a special or extraordinary session, there are two sessions or assemblings of each Congress,” and the adjournment of June 20 had merely continued the second session of the Eightieth Congress to a specific date (December 31, 1948).

Warren then goes on to consider the meaning of “recess” in the RAC. He cites (indeed quotes in its entirety) the Daugherty opinion, including Daugherty’s view that the term “recess” should be given a “practical” rather than a “technical” construction. Without independently analyzing the issue, Warren asserts that it is now the “accepted view” that a recess is not “restricted to the interval between the final adjournment of one session of Congress and the commencement of the next succeeding session,” but includes also “the period following an adjournment, within a session, to a specified date as here.” Note that Warren interprets Daugherty’s opinion as approving the concept of an intra-session recess appointment, even though, as we have seen, Daugherty never said this.

Because the June 20 adjournment was a “recess” within the meaning of the RAC, Warren concludes that it should also be deemed the “termination of the session” within the meaning of the Pay Act. His reasoning is that the 1940 amendments to the law were designed to make it easier to pay recess appointees, and this legislative purpose would be undermined unless the statutory language was read in a non-technical sense to mean the point in time when the Senate recessed.

Accordingly, Warren determined that Tamm, Rao and Kaufman, whose nominations were pending at the time the Senate adjourned on June 20, could be paid. However, Harper could not be paid because he had received an interim appointment during the preceding recess of the Senate.

Comptroller General Opinion No. 2

As already mentioned, Truman announced his intention to re-convene Congress on July 15, 1948. Pursuant to the President’s proclamation, Congress assembled on July 26, just ten days after the Comptroller General’s first opinion. It remained in session until August 7, during which time Truman re-submitted the nominations of Tamm, Rao and Kaufman. The Senate again failed to take any action on these nominations. On August 7, Congress adjourned to a date certain (again, December 31, 1948), and the AOUSC felt that it needed to obtain another opinion from the Comptroller General. On August 10 it requested Warren’s advice on whether the re-convening of Congress required the suspension of salaries for Tamm, Rao and Kaufman under the Pay Act.

Warren issued his second opinion on August 26. It first addresses the question of whether the “convening of the Congress on July 26, 1948, and its subsequent adjournment on August 7, 1948, constituted the next session of the Senate within the meaning of the [RAC].”

Warren’s answer to this question is an exercise in pure formalism. He simply assumes, without explanation or argument, that the “session of the Senate” in the RAC must be read in the “strict technical sense,” ie, that it must correspond to the designation or numbering of congressional sessions for parliamentary purposes. This contrasts markedly both with Daugherty’s approach to determining the meaning of “recess” in the RAC and with Warren’s own reading, in his prior opinion, of the “termination of the session” in the Pay Act.

Warren notes that Truman’s proclamation convening the Congress did not use the terms “extra” or “special” session. It is unclear whether this observation (which was also made by the Federal Law Section regarding the 1947 proclamation) was offered because of any independent legal significance of the proclamation or as evidence of the President’s understanding of the nature of the session. (Notably, Warren does not mention Truman’s July 27 “Message to the Special Session of the 80th Congress”).

Warren also relies on Ashley v. Keith Oil Corp., 7 F.R.D. 589 (D. Mass. 1947), a case in which the court considered when the FRCP amendments would become effective. However, the court did not actually decide the issue, instead merely noting the conflict between the Federal Law Section, on the one hand, and Jefferson, on the other, as to whether the President’s convening of Congress would terminate the first regular session of the Eightieth Congress.

Moreover, the connection between the proper interpretation of the RAC and the issue considered in Ashley seems somewhat tenuous. Ashley was construing a contemporaneous reference to a specific numbered session of the Eightieth Congress, a reference that would naturally be read in light of Congress’s established practices in numbering its sessions. By contrast, one would think that Jefferson’s understanding of the parliamentary meaning of “session” would be rather more relevant to interpreting the RAC, which obviously pre-dated those practices.

Nevertheless, Warren ultimately gives controlling weight to the simple fact that the congressional calendars, record and journals showed that the period from July 26 to August 7, 1948 was considered part of the second session of the Eightieth Congress. In Warren’s view, this “demonstrates conclusively that the convening of the Congress during the period July 26 to August 8 . . . was not the ‘next Session’ of the Senate within the meaning of [the RAC].”

This conclusion, however, still left Warren with a problem. His first opinion already established that August 7 must be considered the “termination of the session” for purposes of the Pay Act. The Pay Act excluded payment of salary if, at the time of the termination of the session, there was pending the nomination of a person appointed in the preceding recess. Since the three judges in question had been appointed in the recess preceding the July 26- August 7 period and their nominations were pending as of August 7, the statute appeared to prohibit paying them.

Warren circumvents this problem by construing the term “session” in the Pay Act to refer solely to the “session immediately preceding the recess during which the appointment was made.” He notes that the Pay Act applies when a vacancy “existed while the Senate was in session,” and that there is “no question” that this refers to the “session” immediately preceding the recess when the appointment is made.. He buttresses this conclusion by noting “the general rule that, in a statute, the article ‘the’ is to be construed as having a specifying or particularizing effect, opposed to the indefinite or generalizing force of ‘a’ or ‘any.’”

Warren was quite right, of course, that the Pay Act refers to a single session that precedes a recess appointment. What seems to have escaped him is that the drafters of the Pay Act, both the original and the 1940 amendments, expected that recess appointments would be made only in the period between sessions, and would last only for a single session. It appears this assumption was shared by everyone, including the Truman administration, until the time that Warren issued his opinion. The ambiguity he “resolves” is one entirely of his own making.

Regardless, Warren concludes that the August 7 “termination of the session” can be ignored for purposes of paying the three judges under the Pay Act. At the close of his opinion, however, he acknowledges some unease with his conclusions (“I am not unaware of certain corollaries of this decision which at first blush might seem incongruous.”) For one thing, there is the “apparent inconsistency” between his interpretation of the term “session” for purposes of the Pay Act and the RAC. For another, there is the “rather anomalous situation” that if Truman had given new recess appointments to the three judges following the August 7 adjournment (as he evidently intended to do), they could not have been paid.

 

Deficiencies of the Comptroller General’s Opinions 

The most glaring deficiency in the Comptroller General’s legal reasoning is his failure to consider the possibility that the terms “session” and “recess” in the RAC are mutually exclusive so that there can be no such things as an “intra-session recess.” Given that all prior analyses of the RAC appear to take precisely this viewpoint, it is difficult to understand how it escaped Warren’s consideration. In the only prior instance in which the possibility of an “intra-session” recess appointment was considered, it was rejected out of hand by Attorney General Knox.

Warren’s failure to consider the issue is even more perplexing given his recognition that the Pay Act must be read to equate the “termination of the session” with the “beginning of the recess.” Thus, the Pay Act is predicated on the understanding that there is no such thing as an “intra-session recess.” Warren could have given effect to this understanding either by (1) finding that the Pay Act did not authorize payment for recess appointments made during intra-session adjournments or (2) finding that the next meeting of the Senate following a Daugherty recess constitutes a new session for purposes of the Pay Act and the RAC. Instead, Warren contorts the Pay Act to fit with the novel theory that the Senate can be in session and in recess at the same time.

For example, Warren’s opinion would have allowed Truman’s recess appointees to continue to serve (and be paid) even if their nominations had been rejected by the Senate during its July 26-August 7 session. Yet the Pay Act clearly is intended to prohibit payment to individuals who have been rejected by the Senate. This is the type of “anomalous” result that the drafters of the Pay Act did not intend.

It is equally mystifying that Warren failed to consider that the term “session” in the RAC could be given a practical, rather than a technical parliamentary, construction. This of course was the approach taken by Daugherty in construing the term “recess” in the RAC. It was also Warren’s own approach in interpreting the “termination of the session” in the Pay Act.

As a matter of ordinary usage, the period from July 26 to August 7 was a “session” of the Senate, and it was described as such by Truman among others. It seems at the very least plausible that the “next Session” of the Senate in the RAC refers to the next meeting of the Senate following the recess in which an interim appointment is made. Since Warren never considered this as a possibility, he had no occasion to offer grounds for rejecting it.

Even if one assumes that the “session” in the RAC is used in a formal parliamentary sense, it is not obvious that it should correspond to Congress’s subsequent practice in numbering its sessions. If Congress chose to number its sessions by the month, would this change the tenure of a recess appointee? Similarly, why should the fact that Congress chose not to adjourn sine die in June 1948, for technical reasons unrelated to the RAC, determine how long a recess appointee may serve? Why are such practices more relevant to the proper interpretation of the RAC than Jefferson’s definition of a parliamentary session? Warren provides no answers to these questions.

Another deficiency is the failure to give any weight to the Truman administration’s understanding of the duration of a recess appointment. Warren knew that the administration had treated Judge Harper’s commission as expired following the November 19, 1947 and June 20, 1948 adjournments, yet he fails to acknowledge that this has any bearing on the question before him. While he defers completely to Daugherty’s expansion of executive power to make recess appointments, he disregards an executive branch interpretation limiting the scope of its power under the RAC.

Warren’s opinions also contain a significant internal contradiction, which he partially acknowledges at the conclusion of the second opinion. His first opinion found that Judge Harper could not receive a salary under the Pay Act because of his successive appointments under the RAC. However, under the theory of Warren’s second opinion, Harper’s initial appointment was valid through December 31, 1948, and he should have been entitled to salary through that time. Warren suggests that Harper’s subsequent appointments deprived him of the right to be paid, but this is a very odd result.

True, the Pay Act literally prohibits the payment of salary where a pending nomination is of an individual appointed during the preceding recess, but that is because the drafters of the Pay Act understood that a recess appointee would have to be re-appointed in each successive recess in order to stay in office. If such re-appointments are unnecessary, as Warren finds in his second opinion, then his first opinion arbitrarily penalizes a recess appointee (Harper) because he received an additional appointment that was legally unnecessary (and arguably ineffective).

Finally, consider an even more absurd result of Warren’s reasoning. If a recess appointee’s commission extends over multiple recesses (as would almost always be the case under Warren’s theory), then the Pay Act would not prohibit paying him or her for a successive recess appointment because the earlier appointment would not have been in the preceding recess. Although this result is so obviously contrary to the intent of the Pay Act that even the Justice Department has declined to embrace it, it provides yet more evidence of the weakness of Warren’s statutory and constitutional analysis.

The Impact of the Comptroller General’s Opinions 

No doubt the executive branch was delighted to receive a “legislative branch” opinion so favorable to its interests. The Truman administration had apparently intended to give Harper a fourth recess appointment in August 1948 (see here), but Warren’s rulings made it unnecessary to re-appoint any of the four judges.

In 1960, Acting Attorney General Lawrence Walsh was asked by President Eisenhower whether recess appointments could be made during an adjournment of the Senate from July 3 to August 8. Eisenhower also inquired as to how long such recess appointees could serve and whether they could be paid.

Walsh’s response is a virtual paean to Warren’s 1948 opinions, extensively citing and relying on them for his answers to each of Eisenhower’s questions. It drips with phony deference to the Comptroller General, emphasizing the “signal significance” of that officer’s views and the “great weight” to be given his opinions. Not surprisingly, the only one of Warren’s conclusions that Walsh embraces less than whole-heartedly is the one that was unfavorable to the executive branch. In the final footnote of his opinion, Walsh advises against giving successive “intra-session” recess appointments (as the Truman administration did with Harper), but allows only that this “conceivably” could result in suspension of salary. 41 Op. Atty. Gen. 463, 480 n. 23 (July 14, 1960).

To this day, the executive branch trumpets Warren’s opinions as reflecting congressional acquiescence in its understanding of the RAC. See  OLC Opinion, “Lawfulness of Recess Appointments during a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions” 7(Jan. 6, 2012) (“”’Considering that the Comptroller General is an officer in the legislative branch, and charged with the protection of the fiscal prerogatives of the Congress, his full concurrence in the position taken by the Attorney General . . . is of signal significance.’”) (quoting Walsh opinion). In fact, there is no evidence that Warren consulted with congressional leaders on these issues, and a good deal of reason to doubt that his conclusions reflected either the interests or views of the legislative branch as a whole.

With respect to the tenure of any recess appointees who received commissions during the July 3- August 8, 1960 adjournment, Walsh asserted that the “’End of their next Session’ [in the RAC] is not the end of the meeting of the Senate, beginning when the Senate returns from its adjournment on August 8, 1960, but the end of the session following the final adjournment of the 86th Congress, presumably, the first session of the 87th Congress.” In support of this assertion Walsh offers little beyond reliance on Warren’s opinion.

Ever since, the Warren/Walsh position on multi-session recess appointments has been uncritically accepted by the Department of Justice (and the GAO). No one has seen fit to analyze the issue independently, despite the many flaws (detailed above) in Warren’s analysis. It is long past time for this unthinking adherence to come to an end.

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