What’s Happening? Rerunning the Wirt-Rappaport Debate on the Recess Appointments Clause

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.

On the other hand, the Rappaport theory might seem to do a better job than the Wirt theory with regarding the second objective of the RAC- namely providing a clear and objective rule for presidential action. Wirt contended that his interpretation “cannot possibly produce mischief, without imputing to the President a degree of turpitude entirely inconsistent with the character which his office implies,” but even this contention implicitly admits that Wirt must rely on the President’s honor and good judgment to prevent abuse. To take just one obvious example, Wirt’s interpretation would allow the President deliberately to fail to submit a nomination to the Senate and then fill the vacancy once the Senate recessed.

The Rappaport theory, however, has its own difficulties in this regard.  As Professor Edward Hartnett points out in this article, there are a number of factual and legal uncertainties associated with determining when exactly a vacancy arises. Thus, although the first Attorney General, Edmund Randolph, advised President Washington that the RAC could only be used when a vacancy arose during the recess of the Senate, and this ostensibly remained the executive branch position until 1823, Hartnett describes a number of instances in which recess appointments were made even though the vacancy apparently arose while the Senate was in session, or where it is impossible to tell from available records when the vacancy occurred, or where a vacancy only “arose” during the recess under legal theories that are themselves dubious or debatable. (The last category includes Washington’s practice of having nominees confirmed by the Senate as sort of placeholders and, then, if a nominee declined the appointment during the recess, treating the declination as creating a new vacancy that could be filled under the RAC.) These problems at least diminish the comparative advantage of the Rappaport theory with regard to the second purpose of the RAC.

With regard to the third purpose, ensuring the primacy of the advice and consent process, Wirt’s interpretation allows the President, in most if not all cases, to circumvent the Senate’s role if he so wishes. Even though presidents have used this power only in a small minority of the situations in which they could have done so, it could be argued that giving the executive branch this leverage nonetheless undermines the Senate’s advice and consent power. Moreover, if presidents should become more aggressive about using the power, the impact on the Senate’s role could be even greater. (See page 10 of this 2004 amicus brief on behalf of Senator Edward Kennedy for an argument that presidents have in fact dramatically expanded the use of the RAC over the past few decades.)

However, from the perspective of the early congressional practice which provided the background for the Framers, the difference between the Wirt and Rappaport theories is not as great as it might first appear. Recall that in the first decades of the Republic, the Senate was generally in recess for more than half the year. Assuming that vacancies were randomly distributed, most vacancies would naturally “happen” during the recess. Moreover, if the President wanted to use the RAC power, he could in many cases (e.g., resignation or firing) arrange for the vacancy to happen during the recess. Thus, the Rappaport theory would not necessarily impose a great restraint on the President’s ability to circumvent advice and consent.

This becomes even clearer when one considers the possibility of repeated recess appointments. Under the RAC, the commission issued by the President expires at the end of the Senate’s next session. As a literal matter, therefore, a new vacancy would “happen” at the instant the recess began (unless the office was already filled by an advice and consent appointment). Thus, even under the Rappaport theory, the President might keep particular offices filled indefinitely without advice and consent.

If this is so, it is particularly difficult to imagine why the Framers would have chosen to prohibit the President from ever filling vacancies that initially arose during a session of the Senate. Under this scenario, the Senate would have all the leverage with regard to vacancies that arose during a Senate session (since the President could never fill them without advice and consent), while the President would have all the leverage with regard to vacancies that arose during a recess (since he could keep them filled indefinitely without advice and consent). It is hard to see how this arrangement advances any discernible objective.

Perhaps recognizing this problem, Rappaport argues that the RAC should not be read to permit repeated recess appointments. While acknowledging that the language is “not clear,” he contends that it “appears to point slightly in the direction of the vacancy arising during the session.” Thus, the President would not be able to fill such a vacancy under the Rappaport theory.

As a textual matter, however, this seems wrong. Read literally, the RAC provides that the commission and the session expire at the same time; thus, the vacancy could not “happen” until the session was over.

Perhaps this was a technical glitch in the drafting of the RAC, but if so, it is not one just discovered recently. As Rappaport acknowledges, St George Tucker, in his relatively contemporaneous commentaries on the U.S. Constitution, interpreted the RAC to permit the President to keep offices filled indefinitely. Because the RAC authorizes the issuance of commissions that “expire, not at the meeting of the senate, but at the end of their session,” Tucker concluded that “it is evidently in the power of the president to continue any person in office, whom he shall once have appointed in the recess of the senate, as long as he may think proper.”

It seems unlikely to me that the Framers consciously designed the RAC to allow the President to keep an office filled indefinitely. Perhaps they simply assumed that the expiration of the commission would end the President’s power under the RAC; perhaps they never considered (or resolved) the issue one way or the other. But the same can be said about filling vacancies that exist, but do not arise, during the Senate’s recess; there simply is insufficient evidence to determine what the Framers specifically intended in this regard.

If we were writing on a blank slate, the Rappaport theory might still be preferable as more consistent with the text of the RAC. But given that the executive branch has followed the Wirt theory for nearly two centuries, it seems a little late in the day to adopt the Rappaport position.

Furthermore, it happens (so to speak) that there is a modification to the Wirt theory that solves some of the textual problems we have identified. Under this modification, “that may happen” is best read as “exist by happenstance.” In other words, as suggested by Wirt and others, the RAC can only be used when a vacancy exists during the recess of the Senate by virtue of some sort of fortuity or accidental circumstances. See Hartnett, supra, note 110 (“Notice that Wirt’s view seems to reflect some sense that ‘happen’ involves an element of chance or fortuity.”); id. notes 27, 112 & 114; Evans v. Stephens, 387 F.3d at 1230 n.4 (Barkett, J., dissenting) (The eighteenth-century definitions [of ‘happen’] suggest a somewhat more pronounced emphasis on the element of chance or fortuity. . . .”). Thus, not all vacancies would “happen” during the recess of the Senate, and the words “that may happen” in the RAC would not be mere surplusage.

In most cases it would still be up to the President to decide whether a vacancy existed by happenstance during the Senate’s recess. However, some vacancies could be said, as a matter of law, not to exist by happenstance. As discussed in prior posts, original vacancies do not “happen” during the recess of the Senate when they occur by operation of law at the time that Congress enacts the law creating a new office. In such a case the vacancy is a deliberate policy choice by Congress which is in no sense a fortuity or accident.

Similarly, it would seem that a vacancy caused by the expiration of a commission under the terms of the RAC itself would not “happen” within the meaning of the Clause. Again, the vacancy would exist during the recess of the Senate, not as the result of happenstance, but by the deliberate design of the Framers.

The “exist by happenstance” theory may not perfectly resolve all of the questions raised by the RAC, but it seems to fit better with the Clause’s text, purpose and historical interpretation than any other alternative.


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