To continue our discussion of the Recess Appointments Clause, I would like to revisit a debate that took place on the Senate floor in March 1814. It concerned actions taken by President Madison earlier that year, while the Senate was in recess. Having received an offer from Czar Alexander of Russia to help mediate an end to the War of 1812, Madison used his powers under the RAC to name three envoys (John Quincy Adams, Albert Gallatin and James Bayard) to conduct negotiations on behalf of the United States.
When Congress returned, Senator Gore of Massachusetts introduced a resolution that declared Madison’s actions to be unconstitutional. The resolution began:
The President of the United States having by the Constitution 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.
RESOLVED, That, in the opinion of the Senate, no such vacancy can happen in any office not before full.
Gore’s argument focused on the words “which may happen” in the RAC. He acknowledged that a newly created office might be said to be “vacant” and that “[a] vacancy may be said to exist in such office, immediately after its creation.” However, “for a vacancy to happen at any time in an office, that office must have been full at some time previous to the period when it did happen; for a vacancy to happen during the recess of the Senate, the office must have been full during their session prior to, and at the commencement of their recess.” (emphasis added). Since the envoy positions given to Adams, Gallatin and Bayard had never been filled previously, no vacancy could have “happened” in these offices, and thus the RAC was not triggered.