So About that Recess Appointments Clause

Article II, §2, cl. 3 of the Constitution (the “Recess Appointments Clause” or “RAC”) provides that “[t]he 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.”

The Constitution requires that Congress “assemble” at least once a year. Under the 20th Amendment, Congress assembles on January 3, unless a different day is established by law. This begins a “session” of Congress, which lasts until it adjourns sine die or until the session expires automatically by the commencement of a new session in the next year. Normally Congress holds one session per year; thus, one would typically refer to a bill or report as having occurred in either the First or Second Session of a particular Congress (eg, 110th Congress, 2d Sess.). However, nothing prohibits holding more than one session per year, and on occasion there have been Congresses that have held more than two sessions (indeed, the first Congress held three sessions).

According to the January 3, 2012 Congressional Daily Digest: “The Senate met in pro forma session to convene the second session of the 112th Congress at 12:01:32 p.m., and adjourned at 12:02:13 p.m. until 11 a.m., on Friday, January 6, 2012.” So after “assembling” for nearly a full second [Update: as an observant reader points out, that should be nearly a full minute- 41 seconds in fact], the Senate adjourned for 2 days, 22 hours, 59 minutes, and 57.87 seconds. (Hope you are taking notes- this could be on the exam).

On January 4, President Obama made four appointments pursuant to the Recess Appointments Clause. Three of them were to the National Labor Relations Board (NLRB), and one was the director of the new Consumer Financial Protection Bureau (CFPB).

Depending on whom you ask, these actions were clearly constitutional, clearly unconstitutional, or somewhere in between. Most commentators have focused on the question of whether the Senate was in “recess” at the time the appointments were made. Sometimes this question gets confused with whether the Senate was “adjourned” or “in session,” but these questions are more easily answered. The Senate was certainly adjourned on January 4 (then, again, the Senate is adjourned for at least part of virtually every day). Whether the Senate was “in session” depends on whether one is using this phrase as simply the converse of being adjourned (as it often colloquially used) or whether one is asking if January 4 was “during the Session of Congress” (the phrase used in Article I, section 5, cl. 4). If one means the former, the answer is no; if the latter, the answer is yes because the second session of the 112th Congress convened on January 3.

But is the question of whether the Senate is in “recess” the same as any of these questions? Unfortunately, the Constitution does not clearly define what constitutes a “recess,” a term that it uses only twice. Apart from the RAC, the Constitution refers to a “recess” only in the Senate Vacancies Clause, which states “if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.”

Some constitutional lawyers argue, quite reasonably, that the “recess” referred to by the RAC must refer to the period between sessions of the Senate; this conclusion gains some support from the usage in the RAC (the juxtaposition of “the Recess” and “their next Session”), but it is primarily based on the Framers’ expectations of how Congress would operate.

At the time the Constitution was written, a “session” of Congress (or the Senate) would have been understood as a natural event. The Framers expected that Congress would “assemble” at a particular location for a period of time, during which it would accomplish whatever business it needed to accomplish, and then it would go home. Of course, they understood that there would be routine day to day adjournments, but the realities of 18th Century transportation would make it impractical for most Members of Congress to return to their homes until Congress had completed its work. Thus, the Framers had no reason to expect that there would be intrasession adjournments of any significant length.

Note that this observation does not tell us whether the literal meaning of the term “recess,” in the late 18th Century, encompassed intrasession adjournments. Nor does it necessarily mean that the Framers specifically intended to exclude intrasession adjournments from the RAC. It simply means that the intersession recess, ie, the period between sessions of Congress, was likely the only “recess” that had any salience for the Framers.

By the early 20th century, however, congressional practice had changed. Instead of taking one long intersession recess, Congress would periodically adjourn for several weeks or more during the session; although there was still typically a substantial intersession recess, this was no longer invariable practice and in some years there was no break between sessions at all. This raised questions as to when the President could use his power under the RAC. Initially the executive branch took the position that the RAC only applied to intersession recesses, but that the moment of transition between congressional sessions, even if it was just a few seconds, constituted a “recess” for purposes of the RAC.

In 1921, however, Attorney General Daugherty rejected the distinction between intersession and intrasession recesses and concluded that the existence of a “recess” should be determined by considerations such as the following: “Is the adjournment of such duration that the members of the Senate owe no duty of attendance? Is its chamber empty? Is the Senate absent so that it can not receive communications from the President or participate as a body in making appointments?” Acknowledging that the “line of demarcation cannot be accurately drawn,” Daugherty stated that the President “is necessarily vested with a large, although not unlimited, discretion to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent of the Senate.” In Daugherty’s judgment, an adjournment of 5 or even 10 days would be too short to qualify as a recess.

The executive branch has followed Daugherty’s opinion ever since, but its lack of a bright-line test has proved to be something of an embarrassment. Perhaps it was thought that “the President will know a recess when he sees it” was not the best message to communicate to the legislative or judicial branches. Accordingly, executive branch lawyers have suggested from time to time that there is an irreducible minimum below which an adjournment will not constitute a “recess” within the meaning of the RAC. They have located this minimum in Article I, §5, cl. 4, which provides that “Neither House, during the Session of Congress shall, without the Consent of the other, adjourn for more than three days.”

It has been suggested that there is no logical connection between the three-day adjournment provision and the definition of a “recess” for purposes of the RAC. There is considerable merit to that criticism, but one can at least appreciate the internal logic of the executive branch’s position. If one starts with the proposition that the Daugherty opinion is correct in concluding that some, but not all, intrasession adjournments are “recesses” within the meaning of the RAC, the three-day adjournment provision looks like a plausible demarcation of the line between routine day-to-day adjournments of the kind that the Framers could not possibly have intended to be “recesses” under the RAC and more extraordinary adjournments that are at least candidates for the President’s exercise of discretion. Certainly it seems like a better line of demarcation than Harry Daugherty’s gut feeling that 5 or 10 days are too short to be a recess.

The only justification for the three-day rule, however, is the perceived need for a formal and objective line of demarcation between routine adjournments and those that might amount to “recesses.” If the President retains the discretion to declare that an adjournment of three days or less is a “recess” under some circumstances, the plausibility of the three-day rule fades considerably. This is particularly true if an adjournment can simultaneously be less than three days for purposes of determining whether consent of the two houses is needed and more than three days for purposes of adjudging it a recess under the RAC.

You may recall that the Senate’s adjournment from January 3 to January 6 was 1 hour and 2.13 seconds less than three days. (How curious it is!  What a bizarre coincidence!) Yet the President determined that the Senate was in recess for purposes of exercising his authority under the RAC. One might ask how that could be, unless the executive branch is jettisoning the three-day rule for purposes of the RAC.

That’s a good question. But before we get to that question, maybe we should ask a different one. The RAC provides that the President has power to fill “all Vacancies that may happen during the Recess of the Senate.” Even if January 4 was during the recess of the Senate, did the vacancies in question “happen” during that recess? For that matter, did the vacancies “happen” at all?

I will turn to those questions in my next posts.



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