Attorney General Knox and the Multi-Session Recess Appointment

On December 24,1901, during the administration of Teddy Roosevelt, Attorney General Knox issued an opinion responding to the question whether President Roosevelt could fill a vacant office (the appraiser of merchandise in the district of New York) during the “current holiday adjournment” of the Senate. Both houses had adjourned from December 19, 1901 to January 6, 1902 for the Christmas and New Years holidays.

It is important to appreciate the factual context of this question. The Fifty-seventh Congress had been elected in 1900 but, in accordance with normal practice prior to the 20th Amendment, its first meeting was not until the first Monday of December 1901 (December 2). The taking of a holiday adjournment during the session that began in December had become a matter of routine after the Civil War, with such adjournments typically lasting a maximum of 19 days (there was one exception in 1877, when the adjournment lasted for 26 days). The 17-day adjournment considered by Knox fell squarely within this tradition.

The issue, according to Knox, was “[m]ay the President appoint as in the recess when the Senate had adjourned temporarily to a day certain?” In answering this question in the negative, Knox explained the parliamentary differences between a resolution for “final adjournment of Congress for the session,” on the one hand, and, on the other, “a merely temporary suspension of business from day to day or, when exceeding three days, for such brief periods over holidays as are well recognized and established and as are agreed upon by the joint action of the two Houses.” While Knox acknowledged that the latter type of temporary adjournment might constitute “a recess in the general and ordinary use of that term,” he denied that it could be “the recess” referred to by the Recess Appointments Clause.

Apart from the distinction between “a recess” and “the recess,” Knox grounded his opinion on two structural points. The first was that if temporary adjournments during a session qualified as “recesses” within the meaning of the RAC, then every day-to-day adjournment of the Senate would become a recess during which the president could fill vacant offices. Such a result would be inconsistent with both historic practice and with the purposes of the RAC.

The second point related to the length of the temporary commissions granted under the RAC. Knox saw this as an insuperable barrier to finding the RAC applicable to an “intra-session” recess:

If an adjournment during a session is a recess within the meaning of the clause of the Constitution in question, then the commission of an appointee of the President would extend to the end of the Fifty-seventh Congress, as the Constitution provides that it shall extend to the end of the next session, not the session within which the recess occurs. The only theory to defeat such a conclusion would be that the reassembling of the Senate after each adjournment constitutes a new session, a position wholly untenable in view of the constitutional provision as to adjournments during the session.

23 Op. Atty Gen. at 404 (emphasis in original).

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