Chief Justice Roberts and the Recess Appointments Clause

I really, truly intend to leave the subject of the Recess Appointments Clause, but, as I was compiling material for a final post to be entitled “The Recess Appointments Clause in One Place,” I came across this interesting and somewhat instructive episode from the Reagan Administration.

On Friday afternoon, January 18, 1985, a young lawyer in the White House Counsel’s office by the name of John Roberts telephoned Herman Marcuse, a very not young lawyer in the Office of Legal Counsel. Marcuse’s memo to the file explains that Roberts:

presented a question about the President’s power to make recess appointments to the Board of Directors of the Export Import Bank. He advised me that the terms of two of the directors would expire on January 20, 1985, and inquired whether the President could make recess appointments to the Board in the morning of January 21, 1985 before the Senate would reconvene from its recess at noon. I asked Mr. Roberts when the recess began, and he stated that it began on January 3.

Marcuse advised Roberts “that the recess period of 18 days was extremely short” and said that in light of “the close and delicate nature of the question,” he would need to consult with his OLC colleagues. Roberts explained that the matter was “rather urgent.” (To those who didn’t go to Harvard Law School, you see, this might not be self evident from a Friday afternoon phone call regarding the constitutionality of an action the President wants to take on Monday morning).

Marcuse discussed the matter with his colleagues Ralph Tarr and Larry Simms, and it seems clear that all three of them were uncomfortable with the proposed course of action. In addition to feeling that an 18-day recess was “rather short,” the OLC lawyers were concerned about making recess appointments a few hours before the Senate returned. Simms “suggested that the difficulty of making recess appointments in the morning of January 21st might be avoided by having the directors whose terms expire on January 20th resign immediately so that the President could make a recess appointment on January 19th or 20th.” In any event, Tarr and Simms recommended “the President should submit nominations as soon as possible.”

At this point one might ask why the OLC lawyers thought either the timing of the recess appointments or the subsequent submission of nominations mattered. After all, whatever constitutional authority President Reagan had to make recess appointments was exactly the same on the morning of January 21 as it would have been on January 19 or 20. Nor could the President’s subsequent submission of nominations affect the constitutionality of the appointments.

The answer, I think, lies in the executive branch’s longstanding recognition that the RAC power, or at least the expanded version of it constructed by executive branch lawyers, can be abused, and should not be exercised in a mechanical fashion. Therefore, a recess appointment is not constitutionally proper or appropriate merely because it is arguably permissible under the executive branch’s view of the RAC. In addition, when the executive branch pushes the constitutional envelope with a recess appointment, it should be particularly careful to respect the Senate’s advice and consent function by submitting timely nominations.

In any event, Marcuse passed the advice on to Roberts. Roberts, however, explained to Marcuse that the tactic of making recess appointments prior to January 21 was too risky because such appointments would arguably end, under the statute, when the terms of the incumbents expired on January 20. He also noted that a nomination for one of the prospective positions had already been submitted to the Senate, but that confirmation was expected to take some time, and that the Export-Import Bank “had warned the White House that extended vacancies on its Board would cause serious problems.”

In light of this explanation, Marcuse “advised Mr. Roberts that, in the view of this Office, these recess appointments should be avoided, if at all feasible; but, on the other hand, what had to be done, had to be done, and we could not say that they would be constitutionally invalid as a matter of law.” (emphasis added).

But there is more. On January 22 (after the recess appointments had been made), Marcuse realized that the adjournment in question was not 18 days long, as he had understood. Roberts had told him that the recess had begun on January 3, but in fact this turned out to be the date on which the House had adjourned. Apparently unbeknownst to Roberts, the Senate had not adjourned until January 7. (Insert your own HLS-related joke here). This meant that the Senate’s adjournment was actually only 14, not 18, days.

Marcuse then prepared an addendum to his memo explaining that his original advice was given based on a mistaken understanding of the facts, but indicating that it was harmless error based on the following legal reasoning (which I quote in its entirety): “While 14 days is an extremely short period, it is felt that Attorney General Daugherty’s opinion of August 21, 1921, 33 Op. Att’y Gen. 20, 24-25 would support the conclusion that the President has the power to make an appointment during a recess of the Senate lasting only fourteen days.”

Well, if an 18-day period was “rather short,” we can understand how a 14-day period would be “extremely short.” But how exactly did Marcuse figure the part about Daugherty’s opinion supporting the conclusion that recess appointments during a 14-day adjournment were ok? Recall that Daugherty had blessed recess appointments while the Senate was adjourned for a 28-day period, but had expressed his view that “an adjournment for 5 or even 10 days” would be insufficient.

Reading Daugherty’s opinion charitably (and overlooking the silly amount of deference being given to what appear to be little more than his gut feelings), one might infer that 10 days was approaching the period of adjournment that could reasonably be considered a “recess.” But given that Daugherty said “the line of demarcation cannot be accurately drawn” and that 14 is considerably closer to 10 than to 28 (even University of Chicago grads know that), the most one can say is that 14 days might be a sufficient period under Daugherty’s opinion. And then again it might not.

One cannot escape the conclusion that the real reasoning behind Marcuse’s conclusion was expressed in his original memo: “what had to be done, had to be done.”

Which, when you think about it, should probably be the motto on the door at the Office of Legal Counsel.

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