We now come to Attorney General Harry Daugherty, whose 1921 opinion still controls the executive branch’s understanding of what constitutes a “recess” within the meaning of the Recess Appointments Clause. See OLC Opinion, “Lawfulness of Recess Appointments during a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions” 5 (Jan. 6, 2012) (noting that the existence of a recess is determined “[u]nder a framework first articulated by Attorney General Daugherty in 1921, and subsequently reaffirmed and applied by several opinions of the Attorney General and this Office”); id. at 12 (discussing Daugherty’s “seminal opinion”).
The prominence of this opinion is presumably not due to the prestige of its author. No one would describe Harry Daugherty as an “extraordinary lawyer.” At least not in a good way. See L. McCartney, The Teapot Dome Scandal 63 (2008) (describing how Daugherty and a crony entertained President Harding and members of his administration at the H Street house, which they ran “like a combination bordello, gambling den, and speakeasy at a cost of $50,000 a year.”).
But I digress.
Daugherty’s opinion, issued on August 27, 1921, addressed the question whether Harding could make recess appointments “during the present adjournment of Congress.” The House and Senate had adjourned on August 24 until September 21, a 28-day adjournment.
Daugherty begins by noting that he has examined Knox’s 1901 opinion with considerable care. He states that “there is no real inconsistency between the conclusion I am about to announce and the conclusion [Knox] arrived on the particular point under consideration,” but “I am nonetheless constrained to dissent . . . from some of the observations which that opinion contains.” 33 Op. Atty Gen. at 21.
Daugherty then defines the issue before him:
Regardless of whether the Senate has adjourned or recessed, the real question, as I view it, is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word “recess” a technical and not a practical construction, is to disregard substance for form.
In this connection it is interesting to note that at an early date the question arose whether the President’s power of appointment is limited to filling only those vacancies actually occurring during the recess of the Senate; or whether it extends to vacancies happening while the Senate is in session and still remaining unfilled when the session is closed.
Id. 21-22 (emphasis in original).
As indicated in this passage and throughout the opinion, Daugherty identifies the key issue as whether the Senate is “in session.” If the Senate is in session, the RAC does not apply. If the Senate is not in session, it does.
Daugherty tends to avoid the term “recess,” which he seems to view as a technical parliamentary term that distracts from the practical, fact-based analysis he favors. Thus, when he quotes extensively from the 1905 Senate Judiciary Committee report, he removes the word “recess” and instead focuses on the report’s reference to “the period of time when the Senate is not sitting in regular or extraordinary session.”
Daugherty’s opinion is often cited for the proposition that the RAC can be invoked during an “intra-session recess.” (Indeed, when I started this series, such was my understanding). Nowhere in the opinion, however, does the term “intra-session recess” or “intra-session” appear. To the contrary, Daugherty’s view is that the “recess,” for purposes of the RAC, is the period of time when the Senate is not in session. This period of time (obviously) separates the periods of time when the Senate is in session and therefore would seem to be, by definition, an inter-session recess.
To be sure, Daugherty acknowledges that the Senate can adjourn and still remain in session. Noting “neither house can adjourn for more than three days without the consent of the other,” he states that “no one . . . would for a moment contend that the Senate is not in session when an adjournment of [this duration] is taken.” 33 Op. Atty Gen. at 25. Furthermore, Daugherty does not think “an adjournment for 5 or even 10 days can be said to constitute the recess intended by the Constitution.”
To interpret Daugherty’s opinion as recognizing an “intra-session recess,” one would have to posit a period of time in which the Senate was “intra-session” but not “in session” or “sitting in regular or extraordinary session.” There is nothing in Daugherty’s opinion to suggest that this was his view. Instead, he draws a single line between the “intra-session” adjournment, on the one hand, and the “inter-session” recess, on the other.
The difficulty for Daugherty is trying to distinguish between these two categories. Noting that “the line of demarcation cannot accurately be drawn,” he suggests looking at the factors set forth in the Senate Judiciary Committee report to determine when a mere adjournment becomes a recess:
Is the adjournment of such duration that the members of the Senate owe no duty of attendance? Is its chamber empty? Is the Senate absent so that it can not receive communications from the President or participate as a body in making appointments?
Id. at 25.
Unfortunately, as Professor Rappaport points out, these factors do not mean very much. It is hard to see how they distinguish one adjournment from another, apart from differences in the duration of the adjournments. Notably, Daugherty makes no attempt to apply these factors to the 28-day adjournment he was considering or, for that matter, to offer any explanation as to why a 28-day adjournment, as opposed to a 10-day adjournment or the 17-day adjournment involved in the Knox opinion, qualifies as a recess. Indeed, it is ambiguous as to whether Daugherty concludes that it is a recess, or merely that the President would have the discretion to deem it so.
If Daugherty had wanted to establish a specific duration to distinguish a recess from a mere adjournment, he had a fairly attractive option. Then, as now, the standing rules of the Senate provide:
Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being made again to the Senate by the President; and if the Senate shall adjourn or take a recess for more than thirty days, all nominations pending and not finally acted upon at the time of taking such adjournment or recess shall be returned by the Secretary to the President, and shall not be considered unless they shall again by made to the Senate by the President.
Senate Rule XXXI(6). This provides rather strong evidence that the Senate itself considers an adjournment of more than 30 days to be the equivalent of an inter-session recess for purposes of nominations.
Daugherty could have adopted 30 days as the “line of demarcation,” which would have been consistent with the RAC’s purpose of providing a clear and objective rule as to when the President may fill vacancies. But that would have meant Harding could not fill vacancies during the adjournment in question, which might have put a damper on the evening’s festivities at the H Street house.
Be that as it may, Daugherty bequeathed to future executive branch lawyers a vague if not meaningless test for determining whether a particular adjournment constitutes a recess for purposes of the RAC. Small wonder that it has produced many occasions for disputes and recriminations between the executive and legislative branches.
But one thing that Daugherty did not do was opine that a recess appointee would have a multi-session tenure. Given that the question of tenure was squarely raised in Knox’s opinion, which Daugherty had examined “with more than ordinary care,” it seems unlikely that this omission was inadvertent. Whatever Daugherty’s reason for not addressing the issue, the reasoning of his opinion is clearly inconsistent with the multi-session tenure theory.