A Recess By Any Other Name

We now come to the issue that has been much discussed in connection with President Obama’s January 4, 2012 recess appointments: what constitutes a “recess” within the meaning of the Recess Appointments Clause? The RAC, you will recall, 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.” (emphasis added).

Recess and Session

Although the Constitution does not define the terms “recess” or “session,” at the time of the framing there would have been little reason to question the meaning of these terms. As discussed in my original post, the Framers would have understood the “session” to consist of the time that Congress (or in some cases the Senate alone) was assembled at the seat of government, while the “recess” was the time between sessions when members of Congress returned to their homes.

The notion of Congress being in “recess” and in “session” simultaneously would have made little sense, sort of like describing someone as being asleep and awake at the same time. The understanding of these terms as mutually exclusive can be seen, for example, in the Act of March 3, 1791, which dealt with the appointment of duties inspectors and provided “if the appointment of inspectors . . . shall not be made during the present session of Congress, the President may, and he is hereby empowered to make such appointments during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” 1 Stat. 199, 200. It is evident from this usage that the “recess” is the period between the “present session” and the “next session.”

The relationship between session and recess was more explicitly stated by Senator Gore when he observed, during the 1814 debate, that “[t]he time of the Senate consists of two periods, viz: their session and their recess.”

There is no reason to believe that Gore thought this statement in any way controversial. Rather he was merely making a foundational observation for his argument that a vacancy must “happen” during the recess for the RAC to apply. Attorney General Wirt, while disagreeing with Gore on the definition of “happen,” shared his understanding of the relationship between the recess and the session. Wirt explained:

The constitution does not look to the moment of the origin of the vacancy, but to the state of things at the point at time at which the President is called on to act. Is the Senate in session? The he must make a nomination to that body. Is it in recess? Then the President must fill the vacancy by a temporary commission.

(emphasis added). Clearly Wirt did not believe that the Senate could be “in session” and “in recess” at the same time.

The Senate Judiciary Committee, in its 1868 report, similarly noted:

 We think the language too clear to admit of reasonable doubt, and that, upon principles of just construction, this period [when the vacancy must “happen”] must have its inceptive point after one session has closed and before another session has begun. It cannot, we think, be disputed that the period of time designated in the [RAC] as “the recess of the Senate,” includes the space beginning with the indivisible point in time which next follows that at which it adjourned, and ending with that which next precedes the moment of the commencement of their next session.

 What the Committee said “cannot be disputed”—namely that the recess consists of the period of time between the adjournment of one session and the commencement of the next—was apparently not disputed by anyone.

De Jure versus De Facto Recess

Establishing the relationship between session and recess does not settle the question of how one determines whether the Senate is in session or in recess in the first place. There are two ways one might make that determination. First, it could be viewed as a purely legal or parliamentary question to be answered by reference to Senate orders and resolutions. In that case, one would look to see if the Senate had adjourned sine die, thereby ending its session and commencing a recess.

Second, the existence of a recess might be viewed as a matter of fact. If Congress (or the Senate) is assembled at the seat of government, it is in session, though it may take day-to-day or other brief adjournments of the type expressly contemplated by the Constitution. On the other hand, if Congress adjourns so that its members may return home, it is in recess, regardless of what the parliamentary formalities say.

For the first decades of the Republic, there was no conflict between these two conceptions. When Congress was in session, it rarely took more than the brief adjournments expressly contemplated by Article I, section 5, clause 4, which provides that “[n]either House, during the Session of Congress shall, without the Consent of the other, adjourn for more than three days.” On those occasions when Congress adjourned for a longer period, it did so only for about a week over the Christmas and New Years holidays, not long enough for members to return home. Thus, whenever Congress was formally in session, it was also factually assembled at the seat of government.

The Proposed Recess of 1812

The potential for a conflict between the de jure and de facto recess is illustrated by a debate that took place in Congress in the spring of 1812. Congress had passed a number of measures preparatory to war, including an embargo. A joint committee then proposed that Congress take approximately a 20-day adjournment “during the present session of Congress,” apparently on the theory that it would take some time for events to unfold before Congress could decide whether war should be declared.

During the debate over the proposed adjournment members of both the Senate and House repeatedly referred to it as a “recess.” See 24 Annals of Congress 212-15 (Senate); 1279, 1314-16 (House). It was apparent that the purpose of the recess was to allow members to return home (it was also much discussed that the recess would need to be longer in order to allow all members to go home), and opponents of the measure characterized it as “deserting their posts.”

Senator Bradley, supporting the recess, disputed this characterization and argued:

The Executive is clothed with all the necessary powers to make preparations for war; and if the nation will not abide by us and support the measures of Congress, it is vain to say that we can force the people into a war. I believe the people will be better satisfied with a recess than with our sitting here day to day without doing anything material, and there is nothing material at this moment to do. They are not irrational; they know that Congress have been in session six months; they much also foresee that when we come to war, the Council of the Nation must be perpetually in session; they will, therefore, not be dissatisfied at a short recess. If war be actually to take place at the expiration of the embargo, this, of all others, is the time for relaxation.

 24 Annals of Congress 214.

Senator Bibb, on the other hand, objected to a recess at such a critical time:

Can Congress reconcile it to their consciences, to leave the seat of Government, when they see that our army is not organized, when a proposition for appointing Assistant Secretaries to the War Department, and much other business, is before us? The offices of Commissary General and Quartermaster General are yet vacant; because the restrictions are such as to render them obstacles to the acceptance of persons qualified to fill these offices. . . .

If gentlemen desired relaxation, merely, Mr. B. said, he was content to sit but twice a week. But, what he desired was, that a quorum of both Houses should be within call of their presiding officers, ready to receive Executive communications and act whenever it should be necessary.

 24 Annals of Congress 215-16.

This debate has been cited as evidence that an intra-session adjournment may be considered a “recess,” See Brief for the United States in Opposition to the Petition for Certiorari in Miller v. US 19. However, this seems too simplistic. What it suggests is that the term “recess” was used to describe an adjournment with certain characteristics- namely, where Congress leaves the seat of government, members return home, and there is no quorum within the call of the presiding officers. In other words, an adjournment that looked very much like all the recesses Congress had previously taken.

If this period of contemplated adjournment was, at least colloquially, a “recess,” it seems equally clear that it would be a period when Congress was not “in session.” As Bradley explained, Congress had been in session for six months, and it (or at least the Senate) might have to be in session indefinitely if war was declared; the purpose of the recess was to have a respite between these two periods. As a practical matter, therefore, the period after the recess might be seen as a new session; indeed, one congressman referred to the period after the end of the proposed recess as “the beginning of the session.” 24 Annals of Congress 1339 (Rep. Grundy).

From the standpoint of parliamentary formalities, however, it seems clear that the recess was not intended to end the current session- the proposed resolution refers to an adjournment “during the present session of Congress.” As Representative Williams explained, “[w]e shall begin when we meet again precisely where we left off, there will be a continuity of the session.” 24 Annals of Congress 1340.

One relevant question is why Congress might have decided to provide for continuity of the session, rather than simply to designate the period after the recess as a new session. Congress is free to have multiple sessions in a single year, and in fact has done so both before and after 1812.

It seems to me that there are three possible answers to this question. First, it could be that the decision was made for purely non-substantive reasons. It may have been seen as more politically palatable to treat the recess merely as an interruption to a single continuous session. Or it may have been viewed as more appropriate to treat it as a single session for historical reference purposes.

Second, there may have parliamentary consequences associated with a new session that were considered undesirable. For example, starting a new session might have involved organizational steps that would have been inconvenient under the circumstances. It is apparent from the debate that members of Congress wanted to ensure that they could act quickly once re-assembled.

Third, it is possible that Congress believed that it could not commence a new session without acting by law, which would require the participation of the president. This possibility is suggested by Professor Hartnett who (not commenting specifically on the 1812 debate) observes “I am not aware of any instance in which Congress ended a session and began a new session (other than on the Constitution’s default day), without proceeding by law.” Hartnett suggests that this procedure may be constitutionally required (but see contra this article by Professor Seth Barrett Tillman, arguing that the president plays no role in deciding when to terminate one congressional session and begin a new one.).

Leaving aside for the moment Hartnett’s theory (to which I will return in future posts), what do these possibilities tell us about the relationship of the proposed 1812 recess to the RAC? There is no evidence from the debate that anyone considered the question of what a recess would mean for purposes of filling vacant offices. Yet given the approaching war and Bibb’s expressed concern for offices that were already vacant, it seems unlikely that Congress would have wanted to prohibit President Madison from filling a critical office if it became vacant during the recess. Certainly the reasons why Congress might have wanted a nominal continuity of session would have been unrelated to the RAC.

But it also seems unlikely that Congress would have wanted to give the President the power to extend the tenure of a recess appointee through the end of the session that was to begin in December 1812. The Senate, as we have seen, was jealous of its prerogatives even in wartime. It is doubtful that Senators would have intended that a recess for the convenience of members would have the effect of circumventing advice and consent during such an important time. Thus, if the proposed adjournment was to be considered a de facto recess for purposes of the RAC, it seems equally likely the period after the recess would have been the de facto “next session” for the same purpose.

The proposed 1812 adjournment can give us nothing more than an elaborate hypothetical, however, because Congress never agreed to adjourn. Instead, it stayed in session, declared war in June, and adjourned sine die on July 6.

The Recess Appointments of 1867-68

It was not until 55 years later, in 1867, that Congress took its first extended “intra-session recess.” The circumstances were undoubtedly unique. Locked in a bitter struggle with President Andrew Johnson, Congress was unwilling to adjourn the 39th Congress in March 1867 and wait until December 1867 to convene the first meeting of the 40th Congress, which would have been the normal practice. Its reasons were two-fold: (1) a fear that a lengthy adjournment would leave Johnson free to exercise unchecked power (as Senator Sumner put it, leaving Johnson to “bestride this country like a Colossus”) and (2) a desire to pre-empt Johnson from using his power to call an extraordinary session.

To achieve its ends, Congress first enacted a law to fix a new initial meeting time for the 40th Congress. Pursuant to this statute, the 40th Congress convened on March 4, immediately following the adjournment sine die of the 39th Congress. On March 30, Congress then adopted a concurrent resolution for an adjournment until July 3 and provided that if no quorum was present when Congress re-assembled, it would be adjourned sine die. V Hinds Precedents § 6686. As a matter of parliamentary formality, this adjournment was intended to extend the first session of the 40th Congress at least until July 3.

Johnson, however, immediately called an extraordinary session of the Senate on April 1. This session, which he apparently convened in large measure to show that he retained the power to do so, lasted until April 20.

On May 3, 1867, Johnson appointed Samuel Blatchford to fill a vacancy on a federal court. Hartnett identifies this as the first “intra-session recess” appointment ever made. Despite the open hostility between Congress and Johnson, no one seems to have objected to this action. After Congress re-convened on July 3, Johnson submitted Blatchford’s nomination to the Senate, which confirmed him without incident. On the other hand, it is interesting to note that Johnson’s nomination did not mention that Blatchford had already been recess appointed, an omission that seems to have been contrary to usual practice.

Assuming the Senate was aware that Blatchford had received a recess appointment, one could infer that it did not object to the practice. This would not be too surprising. Just as in 1812, the adjournment in question was commonly referred to as a “recess,” and it bore the characteristics of a typical recess discussed earlier. The formality of continuing its session was not done to prevent recess appointments, but to limit the President’s power in other ways (i.e., to prevent the calling of an extraordinary session), which turned out to be unsuccessful.

It would have been a good deal more surprising, on the other hand, if the Senate had accepted that Blatchford’s temporary commission would last beyond the Senate’s July meeting. Just as the period from April 20 to July 3 was understood functionally to be a “recess,” the July meeting was understood functionally to begin an individual “session.” In fact, the Senate Executive Journal terms the July meeting as the “First adjourned session of the Fortieth Congress, commencing July 3d, 1867” and the later November meeting as the “Second adjourned session of the Fortieth Congress, commencing November 21, 1867.” See also Cong. Globe 753-54 (40th Cong. July 19, 1867) (referring to 1867 meetings as separate sessions) (remarks of Senators Howard and Nye). Moreover, if the formality of the continuing session was ineffective to limit President Johnson’s power, it seems highly unlikely the Senate would have agreed that it could enhance his power.

On July 20, Congress adopted another concurrent resolution adjourning until November 21. V Hinds Precedents § 6687. It assembled on November 21, and adjourned sine die on December 1, formally ending the first session of the Fortieth Congress. The second session began the next day, December 2, 1867, and did not end (again, formally) until November 10, 1868. After Johnson was tried and acquitted in his Senate impeachment trial in the spring of 1868, Congress adjourned from July 27, 1868 to September 21, 1868, during which Johnson made additional recess appointments.

After the July 27, 1868 adjournment, Attorney General Evarts was asked whether the President could fill a vacancy in the office of collector of customs in New Orleans. The incumbent had resigned on July 17, and Johnson had nominated a successor on July 25, but the Senate adjourned without confirming him. In a written opinion, Evarts addressed the following question:

The case is one, therefore, of an office which became vacant during the late session of the Senate by reason of resignation. May the President now fill the vacancy by granting a commission which shall expire at the end of the next session of the Senate?

12 Op. Atty Gen 449, 451 (Aug. 17, 1868) (emphasis added). Evarts concluded, following the opinions of his predecessors, that the RAC was not confined “to vacancies originating or beginning to exist during the recess of the Senate, but embraces ‘all vacancies that, from any casualty, happen to exist at a time when the Senate cannot be consulted as to filling them.’” Id. 452 (quoting Wirt opinion).

Evarts did not address whether the RAC applies to “intra-session recesses” and there is nothing in the opinion to indicate that he thought the nature of the Senate’s July 27 adjournment raised any kind of issue under the RAC. To the contrary, his reference to the “late session” of the Senate suggests that he understood that session to have ended on July 27.

Evarts used the same language in two other opinions issued around this time. In “Case of the Collectorship of Customs for Alaska,” involving an original vacancy in an office established by a July 27, 1868 statute, Evarts noted that the “law was passed just at the close of the late session of Congress . . . [and] there was no time for a nomination to be made for the office before the adjournment of Congress.” 12 Op. Atty Gen. 455 (Aug. 17, 1868). In an opinion a few days later, involving a vacancy in the office of the district attorney for Pennsylvania, Evarts again referred to the session which adjourned on July 27 as the “late session” of Congress. 12 Op. Atty Gen. 469 (Aug. 21, 1868).

The Office of Legal Counsel opinion on the Obama recess appointments picks up on this language and suggests, in footnote 6, that “[i]t is possible that Attorney General Evarts was not aware that the Senate had merely adjourned to a date certain.” Anything is possible, but it hardly seems likely that Evarts, who Hartnett describes as an “extraordinary lawyer,” was unaware of the fact that the Fortieth Congress had altered traditional adjournment practice out of its profound distrust of his boss.

It seems much more likely that Evarts simply viewed “recess” and “session” for purposes of the RAC to be factual, rather than purely formal, determinations. Form this perspective it made perfect sense to conclude that Congress had ended its session on July 27, when it adjourned and its members returned home.  Evarts may not have seen this as a potentially controversial judgment. After all, the Senate itself seemed to share the same view.  Thus, the last entry in the Senate Executive Journal for July 27, 1868 states: “At this point the President pro tempore announced that the hour fixed by the resolution of the two houses for closing the present session by a recess had arrived; and [t]he Senate adjourned.”

If the Senate ended its session on July 27, it would seem logical that the “next session” would commence on September 21, 1868, when Congress re-assembled. However, unlike 1867, where Congress held multiple “real” sessions, the session from September 21 to November 10 appears to have been in name only. No real business seems to have been conducted; the Senate Executive Journal has no entries for this period, indicating that there were no nominations or confirmations. (I surmise, though I don’t know, that the main purpose of this “session” was to make sure that Johnson’s successor was elected safely). Thus, under a “de facto” session analysis, one might be justified in disregarding this session entirely.

Evarts did not address the question of when the “next session” of the Senate would begin or end. It seems likely, however, that the Johnson administration considered its recess appointments to remain valid past November 10. For example, on December 16, 1868, Johnson informed the Senate “I nominate Hiram Ketchum, jr., to be collector of customs for the district of Alaska, he having been appointed, during the recess of the Senate, under the act approved July 27, 1868.” Although not stated in Johnson’s letter, Ketchum had been appointed on August 20, 1868, and the letter implies that Ketchum remained in office as of December.

Again, however, the Johnson administration was not exactly eager to advertise its recess appointment practices to the Senate. For example, by letter of January 11, 1869, Johnson informed the Senate “I nominate Perry Fuller to be collector of the customs for the district of New Orleans, Louisiana, in place of Wm. P. Kellogg.” That vacancy, of course, had arisen in July and had been the subject of Evarts’s recess appointments opinion in August. Johnson’s letter does not mention the fact that Fuller had been exercising the authorities of that office since September, presumably in accordance with a recess appointment given pursuant to that opinion.

Fuller, it should be noted, was a particularly controversial nominee, who was suspected of considerable malfeasance in office (not to mention the accusation in a recent book that Fuller procured Johnson’s impeachment acquittal through bribery). Perhaps Fuller’s nomination was not warmly received in the Senate; just nine days later Johnson submitted a new nominee for consideration.

All in all, the practice of 1867-68 is most consistent with the view that “recesses” and “sessions” are matters for factual, rather than purely formal, determination. However, it would not be until the turn of the next century that this view would be subject to legal analysis. I will turn to those events in another post.

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