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OLC Opinions on Recess Appointments

Apropos of my last post, a friend remarks that I have too much time on my hands. Confirming this hypothesis, please find below a list of OLC opinion and memoranda, with commentary and links, regarding recess appointments.

Office of Legal Counsel Opinions and Memoranda

 2012

Memorandum Opinion for the Counsel to the President, Lawfulness of Recess Appointments during a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions (Jan. 6, 2012) (Virginia Seitz)

The question presented is whether the President has authority under the RAC “to make recess appointments during the period between January 3 and January 23 notwithstanding the convening of periodic pro forma sessions.” Seitz acknowledges that “[t]he question is a novel one, and the substantial arguments on each side create some litigation risk for such appointments.” Nevertheless, she concludes “that the convening of periodic pro forma session in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess” otherwise long enough to qualify under the RAC, and “the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.”

This opinion is discussed, inter alia, here.

1998

Memorandum Opinion for the Counsel to the President, Reimbursement of Expenses under 5 U.S.C. §5503(a) 22 OLC 29 (Feb. 2, 1998) (Dawn Johnsen)

Johnsen finds that the term “payment for services” in the Pay Act does not cover reimbursement of expenses. She acknowledges that the term, standing alone, could be read broadly to include such reimbursement, but finds that this reading is precluded by legislative history showing that the language was not intended to substantively change the meaning of the original Pay Act, which was clearly limited to payment of salary.

Absent this legislative history, she suggests that the result might be different. The original Pay Act, she notes, “was intended to protect the prerogatives of the Senate by making recess appointments more difficult.” The 1940 amendments made the law more flexible, but [b]ecause Congress sought, even through this less stringent 1940 version of the statute, to prevent the payment of salary to individuals who received a previous recess appointment, it could be argued that [this] was designed in particular to prevent [successive] recess appointments,” a goal that would be advanced by a broad reading.

 

1992

Memorandum Opinion for the Deputy Counsel to the President, Recess Appointments During an Intrasession Recess, 16 OLC 15 (Jan. 14, 1992) (Timothy Flanigan)

Flanigan opines that the President may make recess appointments to certain agencies during an “intrasession” Senate recess of 18 days (from January 3, 1992 to January 21, 1992). He states, citing the Daugherty opinion, that “[t]he longstanding view of Attorneys General has been that the term ‘recess’ includes intrasession recesses if they are of substantial length.”

He also notes that “[p]ast practice is consistent with the exercise of a recess appointment power during an intrasession recess of eighteen days,” citing a recess appointment by President Coolidge during a recess of 15 days and a recess appointment by President Reagan during a recess of 18 days.

Note: the Coolidge recess appointment was actually treated as an intersession recess appointment (see here) and the Reagan recess appointment was actually during a recess of 14 days (see here). But close enough for government work.

Without relying on this fact, Flanigan notes that the recess in question here “closely resembles one of substantially greater length” because the January 3 session was merely a “brief formal session” at which no business was conducted, and that otherwise the Senate “will have been absent from November 27 1991 until January 21, 1992.” (footnote 1)

Finally, Flanigan opines that the President may make a recess appointment to the newly created office of the CEO of the RTC. He notes that “Attorneys General have long believed that the President has the power to make an original recess appointment to a newly created position . . . , a position upheld in United States v. Allocco.”

 

1991

Permissibility of Recess Appointments of Directors of the Federal Housing Finance Board, 15 OLC 91 (Dec. 13, 1991) (Timothy Flanigan)

The question presented is whether the Pay Act would bar payment of salary to the directors of the FHFB, who were recess appointed in the prior recess, if the President gives them new recess appointments when their commissions expire.

Flanigan acknowledges that “section 5503(a) has been interpreted as prohibiting the payment of compensation to successive recess appointees.” However, this prohibition applies only to “payments from the Treasury.” In this case, the directors’ salaries come from non-appropriated funds that FHFB deposits in a special Treasury account. These funds are not commingled with other appropriated funds. Following the reasoning of a 1984 opinion involving the FDIC, he concludes that the prohibition of the Pay Act does not apply in situations where the salary is paid by Treasury acting merely as the depositor’s agent, rather than from appropriated funds.

For commentary on this opinion, see here.

 

1989

Memorandum Opinion for the Attorney General re Intrasession Recess Appointments, 13 OLC 271 (Aug. 3, 1989) (Michael Luttig)

The President may make appointments under the RAC during an intrasession Senate recess of substantial length. A 33-day recess is of sufficient length to permit recess appointments.

 

1985

Memorandum to File re Recess Appointments to the Export Import Bank (Jan. 28, 1985) (Herman Marcuse) (Addendum)

This memo summarizes Marcuse’s conversations with John Roberts and his OLC colleagues regarding the propriety of recess appointments during an “intrasession” recess of 18 days, which turned out to be only 14 days.

This memo is discussed here.

 

1984

Memorandum to file re Pay Act (Dec. 21, 1984) (Herman Marcuse)

Marcuse received a call from White House Counsel’s office asking whether the Pay Act would apply in the following circumstances:

The President had made a recess appointment to the Postal Rate Commission in the preceding recess, and had submitted to the Senate the nomination of that same individual in the next session. However, the Senate did not act on the nomination, which remained pending at the end of the session. The President now wanted to make another recess appointment of a different individual and the question was whether the Pay Act would prohibit payment of the salary of the new recess appointee.

As the WH counsel noted, the terms of the Pay Act bar payment where the nomination pending at the end of the session was of an individual recess appointed in the preceding recess, and therefore the situation presented fell literally within the prohibition. Marcuse advised, however, that “the Comptroller General, the officer primarily charged with the interpretation of the Pay Act” had construed the statute to bar payment only for successive recess appointments of the same person. He therefore advised that the “new recess appointee thus could be paid under the interpretation placed by the Comptroller General on the Pay Act.”

Marcuse also suggested that the Pay Act might in any event be inapplicable to the Postal Rate Commission because salaries are paid out of postal receipts, rather than from the Treasury.

 

Memorandum for Counsel to the President, Possible Recess Appointments to the Federal Deposit Insurance Corporation (Aug. 24, 1984) (Robert Shanks)

Question presented is whether, should the President make a recess appointment to replace the Chairman of the FDIC, whose term had expired but was holding over, the recess appointee could be paid under the Pay Act.

First, Shanks finds that a vacancy exists in the office, notwithstanding the fact the incumbent is holding over, and that such vacancy existed while the Senate was in session. The Comptroller General had concluded that in such circumstances the office was not vacant within the meaning of the Pay Act.

Shanks states that DOJ “generally has deferred to the interpretation of § 5503 and its predecessor by the Comptroller General and his predecessor, the Comptroller of the Treasury.” However, he could not defer to the Comptroller General’s interpretation here because it is “inherently contradictory, inconsistent with judicial precedent, and irreconcilable with the interpretation of the vacancy concept advanced by this Department.”

[Note: cynics might suggest that DOJ only “defers” when it likes the result].

Second, Shanks finds that the Pay Act does not bar the payment of salary because the recess appointee would not be paid “from the Treasury” within the meaning of the statute.  Despite language of various decisions describing FDIC funds as “public funds,” he concludes that they are not truly public funds because they are not appropriated and are not required to be kept in the Treasury. He also notes that “the funds of the FDIC are classified in the budget as trust funds, not as federal funds.”

Although FDIC officers and employees are paid with Treasury checks, these checks are drawn on separate accounts maintained at Treasury for the benefit of the FDIC. “Payment by a check drawn on the Treasury by a depositor therein arguably is not payment from the Treasury because payment is not made with Treasury funds.” (emphasis in original). Instead, the Treasury merely acts as the FDIC’s agent in disbursing the funds.

Shanks argues that this interpretation is buttressed by the rule of constitutional avoidance. Although he acknowledges that the Pay Act has never been constitutionally challenged, he suggests that Congress’s authority to enact this limitation is “certainly at its strongest” where appropriated funds are at issue, while is more questionable when the funds in question come “from assessments designed to protect the beneficiaries of a statute and to pay for the expenses of the administration of that legislation.”

He closes by noting that this interpretation of the Pay Act “is not completely free from doubt” and suggesting that the President may want to avoid having to rely on it.

 

1982

Memorandum to file re White House inquiry concerning recess appointments (Dec. 28, 1982) (Herman Marcuse)

Marcuse fielded a call from the WH Counsel’s office with two questions regarding recess appointments. “The first question was whether the President could make recess appointments even if there would be only a short recess between the last session of the 97th Congress and the first session of the 98th Congress. I replied that recess appointments have been made in the past even where the recess between two sessions of the same Congress or two Congresses amounted only to three days or even a single day, but that there might be a problem if the last session of the 97th Senate were followed immediately, without any interval or dispersal, by the first session of the 98th Congress.”

For discussion of the “constructive recess,” see here.

The second question related to the issue of whether a recess appointee, who had been appointed during an “intrasession” recess of the second session of the 97th Congress could be paid, under the Pay Act, through the end of the first session of the 98th Congress. Marcuse advised that this was permitted under the 1960 Attorney General opinion (relying on Comptroller General Warren’s 1948 opinion).

For more on this issue, see here.

 

Memorandum for Fred F. Fielding, Counsel to the President, re Recess Appointment Issues, 6 OLC 585 (Oct. 25, 1982) (Ted Olson)

This memo summarizes OLC’s views on a number of recess appointment issues, including; (1) “recess appointments may be made during extended intrasession recesses of the Senate,” such as the ongoing recess of more than 30 days; (2) the “prevailing view” is that the “next Session” of the Senate in the RAC refers to the “session following the adjournment sine die of the current one”; (3) question of whether a special session called after adjournment sine die of the 97th Congress would be the “next session” for purposes of RAC is “unsettled,” but the answer is probably yes; (4) for purposes of Pay Act requirement of submitting nominations, the “post-recess reconvening” of the Congress should be treated as the “next session;” although this question “remains unsettled,” the better and safer course is to resubmit any nominations that are no longer pending before the Senate.

 

1979

Opinion: 79-57 Memorandum Opinion for the Counsel to the President, 3 OLC 314 (Aug. 3, 1979) (Larry Hammond)

President has the power to make recess appointments during the upcoming recess of the Senate, which is expected to last from about August 2, 1979 until September 4, 1979.

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