Attorney General Wirt’s interpretation of the Recess Appointments Clause, under which the President may fill vacancies that “happen to exist” during the recess of the Senate, has been followed by the executive branch since Wirt issued his opinion in 1823. A few years ago, Professor Michael Rappaport challenged Wirt’s interpretation, arguing that it was so obviously inconsistent with the original meaning of the RAC that it should be rejected despite its long historical provenance. Rappaport contends that the RAC only applies to vacancies that actually “happen,” i.e., arise or occur, during the recess of the Senate. Vacancies that arise while the Senate is in session cannot be filled under the RAC, even if the offices remain vacant when the Senate recesses.
Everyone, including Wirt, acknowledges that Rappaport’s interpretation of the RAC represents the more natural reading of the text. Rappaport argues, in fact, that if the RAC is read to give the President the power to fill all vacancies that exist during a recess, the words “that may happen” in the RAC become mere surplusage. This textual argument also convinced Judge Barkett, who concluded that “the plain meaning of the [RAC] directly, expressly and unambiguously requires that before a vacancy can be filled through the recess appointment power, that vacancy must have occurred during a Senate recess.” Evans v. Stephens, 387 F.3d 1220, 1229 (11th Cir. 2004) (en banc) (Barkett, J., dissenting).
Yet while the Rappaport theory is strongly grounded in the text of the RAC, it faces more difficulty when measured against the three purposes of the Clause. With regard to the purpose of keeping important offices filled, it compares poorly with the Wirt interpretation. As Wirt fairly pointed out, there is a reasonable possibility that some vacancies will arise during the session of the Senate in circumstances where it would be difficult or impossible to fill them with advice and consent. Rappaport’s position would mean that those offices would remain unfilled until the Senate’s return.