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.

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Judge Jackson’s Non-decision on Recess Appointments

U.S. District Judge Amy Berman Jackson issued an opinion yesterday regarding a challenge to the validity of a rule promulgated by the National Labor Relations Board (NLRB) to require employers to post notices informing workers of their right to organize a union and conduct other activities under the National Labor Relations Act (NLRA). In its opinion on the merits, which can be found here, the court holds:

that the NLRA granted the Board broad rulemaking authority to implement the provisions of the Act, and that the Board did not exceed its statutory authority in promulgating Subpart A of the challenged rule – the notice posting provision. But it also holds that the provision of Subpart B that deems a failure to post to be an unfair labor practice, and the provision that tolls the statute of limitations in unfair labor practice actions against employers who have failed to post, do violate the NLRA and are invalid as a matter of law.

The articles about this decision stress another aspect of the court’s ruling, however, dealing with a challenge to President Obama’s recess appointments of three members of the NLRB. This ruling is not found in the main opinion, but in a separate memorandum and order (which for unknown reasons is not available on the court’s website).

The court does not address the merits of the challenge to the recess appointments. Instead, it notes that the “rule challenged in this case was already promulgated” when the recess appointments were made and that therefore “the validity of the recess appointments has absolutely no bearing on any of the issues that are ripe for decision in this case.” The validity of the recess appointments could be relevant to a later attempt to enforce the rule in question, but this issue is not ripe: “Neither the Court nor the parties know if and when the General Counsel will initiate enforcement actions pursuant to the rule, and we do not know whether the Board will be comprised of recess appointees at that time.”

Nothing particularly surprising (or interesting) there, but the media has picked up on the court’s comment that it “declines this invitation to take up a political dispute that is not before it.” The description of the matter as a “political dispute” may be cited by the Justice Department in future cases, if for no other reason than to provide mood music for the theme that the courts should stay out of the whole issue. Of course, Judge Jackson’s remark cannot fairly be taken as expressing any kind of a view on whether courts can review the merits of a recess appointments claim in a case where it is properly presented (and, if it could be so read, it would be obiter dicta).

Incidentally, the validity of the NLRB recess appointments is also being challenged in a case currently pending in the U.S. District Court for the Eastern District of New York. See the brief filed by Paul Clement on February 27, 2012 here.

The Purposes of the Recess Appointments Clause

At first blush, the purpose of the Recess Appointments Clause seems rather obvious- it enables the President to fill offices temporarily when the Senate is not available to provide its advice and consent with regard to a permanent appointment. As Professor Michael Herz observes, the RAC’s purpose seems “sensible, straightforward, and unquestioned.” Yet it may be beneficial to spell out its purposes a little more precisely.

One purpose of the RAC is clearly to keep important offices filled when the public good so requires. As Hamilton wrote in Federalist No. 67, “as vacancies might happen in [the Senate’s] recess, which it might be necessary for the public service to fill without delay, [the RAC] is evidently intently intended to authorize the President, singly, to make temporary appointments ‘during the recess of the Senate, by granting commissions which shall expire at the end of their next session.’”

This purpose is the one stressed by those who urge a broad reading of the RAC. It is worth noting, however, that the Framers did not give the President the power to fill any vacancy when there was an urgent need. The President’s power is limited both as to which vacancies he may fill (ie, those that “may happen during the recess of the Senate”) and as to the duration of the commission that he grants (ie, until the expiration of the Senate’s “next session”). The Framers could have given the President the power to fill all vacancies until such time as a permanent appointment was made, but they did not do so.

A second purpose of the RAC appears to be to provide a clear and objective rule as to when the President may fill vacancies. The President might have been given the power to fill vacancies only where “necessary,” or on “extraordinary occasions,” or “where required by the public good.” But the President’s power is not qualified by any such discretionary judgments; instead, it is bounded by objective factors (or factors that would have seemed objective from the Framers’ perspective). In other words, as Professor Dworkin might put it, the RAC provides a rule, rather than a principle, to guide presidential action.

The first and second purposes imply a third purpose of the RAC- namely to supplement, but not supplant, the primary appointment method set forth in the Appointments Clause. The Framers must have anticipated that there would be situations in which the RAC did not authorize the President to fill vacancies, despite an urgent need, yet they chose to rely on advice and consent (or supplemental statutory authority) to address those situations. Perhaps this reflected a naïve assumption that the Senate would always act with dispatch when circumstances warranted, but is seems more likely that the Framers were willing to bear some risk of unfilled offices in order to protect the primacy of the advice and consent process.

However, because advice and consent appointment requires the cooperation of both the President and the Senate, the connection between any particular interpretation of the RAC and advancing this third purpose is somewhat obscure. A broad interpretation of the RAC may encourage the President to circumvent advice and consent altogether, or it may cause him to be less interested in listening to the Senate’s advice or nominating someone who could easily secure the Senate’s consent. On the other hand, a narrow interpretation of the RAC may discourage the Senate from acting promptly on the President’s nominations, or from giving them appropriate deference. But even this isn’t clear- a narrow RAC could arguably force the Senate to act more responsibly.

This calculus is difficult even if one accepts the widespread view that the Constitution mandates a certain code of conduct by the Senate in response to the President’s nominations. Under this view, the Senate ought to give significant deference to the President’s nominees (or possibly just non-judicial nominees) and each nominee is entitled to an up or down vote within a reasonable period of time.

This view may well be correct, but it is not obviously so. The Appointments Clause does not actually say how the Senate is to exercise its advice and consent function. It does not say that the Senate is required to hold a vote in order to signify its consent, nor that such a vote must be by a simple majority. It does not say that the vote must be held within a certain period of time. It does not say that all nominees (executive, judicial and independent agency) need to be treated in the same fashion. Finally, it says nothing about how the Senate is to provide “advice” on nominees and the relationship, if any, between the Senate’s advice and its consent. (For differing perspectives on these issues, see this exchange between Professors Larry Sollum and Michael Rappaport).

In short, interpreting the RAC in accordance with its purposes is not as simple and straightforward as it might seem. But those purposes provide some guidance in evaluating possible interpretations of the RAC, as I shall discuss in future posts.


The Recess Appointments Clause, the Civil War Congress and Congressional “Acquiescence”

When we left the Recess Appointments Clause in the mid-19th century (for earlier posts, see here, here and here), the executive branch had embraced the proposition that a vacancy “may happen” in the recess of the Senate even though it first arose while the Senate was in session. The legislative branch had not accepted this position, but had not clearly rejected it either.

With regard to original vacancies, the situation was reversed. The Senate was understood to have rejected the use of the RAC to fill original vacancies, while the executive branch, to the extent that it had addressed the issue, seemed to have accepted the Senate’s position.

Neither branch, as far as I know, had directly addressed the lurking issue of whether Congress by legislation could change the baseline RAC rules. Presumably Congress may not regulate (or at least not eliminate) the core RAC power of temporarily filling vacancies that arise during the Senate’s recess. But can Congress legislate around the penumbral edges of the RAC?

For example, can Congress legislatively define the circumstances in which it would be proper for the President to fill a vacancy that arose before the recess in question began? Could it prohibit the President from filling the vacancy if he failed to submit a timely nomination while the Senate was in session? Could it prohibit the President from filling a vacancy that arose before the Senate session that preceded the recess? Could it prohibit successive uses of the RAC for the same vacancy? These questions remained (and still remain) open, but at this point Congress had not attempted to use its legislative power to curtail the President’s use of the RAC.

On the other hand, it seems to have been assumed that Congress could supplement the President’s RAC powers. As had been noted by the Senate Committee on Military Affairs in 1822, there had been “many instances” where Congress had created new offices and expressly delegated to the President the power to fill them during the recess. A statute enacted in 1792 allowed the President to fill vacancies, whether or not during the recess, in the offices of the Secretaries of State, Treasury and War. This clearly gave the President power that he would not have under the RAC. It appears that no one questioned Congress’s authority to bestow such powers on the President.

Such equilibrium as existed, however, was upset in the second half of the 19th century. In 1855, for example, Attorney General Cushing questioned the proposition that newly created statutory offices could not be filled using the RAC. Because he was addressing the issue of filling diplomatic and consular offices, Cushing relied primarily on the idea that these were constitutional offices that could be created by the President, rather than statutory offices (similar to the argument made by Bibb and Horsey in 1814). Nevertheless, Cushing stated that “I . . . cannot allow myself to think that, even if these were statute offices, and the public service should require any one of them to be filled during the recess, it could not constitutionally be done.” 7 Op. Atty Gen. 186, 225 (1855).

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The Recess Appointments Clause, Original Vacancies and Attorney General Wirt

As discussed in my prior post on this subject, it seems to have been the prevailing view in the 1814 Senate that the President could not use the Recess Appointments Clause to fill a newly created statutory office, absent explicit authority in the law to do so. This view could rest on three different grounds. First, it might be argued that a newly created office isn’t “vacant” because the term “vacancy” implies that the office has previously been filled. Second, if a newly created office is considered vacant, the vacancy may be said to happen when the statute creating the office becomes law, which will normally be when Congress is in session. Finally, it may thought that any vacancy in an newly created office doesn’t “happen” at all because it is not caused by accidental circumstances like death or resignation.

Many years before the 1814 debate, Alexander Hamilton stated that the RAC was inapplicable to newly created offices on both the first and third grounds. In 1796, Hamilton advised President Washington that the RAC could not be used to create and fill a new diplomatic position during the recess of the Senate. See David Currie, The Constitution in Congress: The Federalist Period 1789-1801 154 n. 168 (1997). In a 1799 letter to the Secretary of War, Hamilton reiterated his view that “Vacancy is a relative term, and presupposes that the Office has been once filled.” Id. He also argued that “the phrase ‘which may have happened’ serves to confirm this construction” because “it implies casualty- and denotes such Offices as having been once filled, have become vacant by accidental circumstances.” See Michael Rappaport, The Original Meaning of the Recess Appointments Clause 31-32 (2005).

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The Recess Appointments Clause and the War of 1812

To continue our discussion of the Recess Appointments Clause, I would like to revisit a debate that took place on the Senate floor in March 1814. It concerned actions taken by President Madison earlier that year, while the Senate was in recess. Having received an offer from Czar Alexander of Russia to help mediate an end to the War of 1812, Madison used his powers under the RAC to name three envoys (John Quincy Adams, Albert Gallatin and James Bayard) to conduct negotiations on behalf of the United States.

When Congress returned, Senator Gore of Massachusetts introduced a resolution that declared Madison’s actions to be unconstitutional. The resolution began:

The President of the United States having by the Constitution 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.

RESOLVED, That, in the opinion of the Senate, no such vacancy can happen in any office not before full.

Gore’s argument focused on the words “which may happen” in the RAC. He acknowledged that a newly created office might be said to be “vacant” and that “[a] vacancy may be said to exist in such office, immediately after its creation.” However, “for a vacancy to happen at any time in an office, that office must have been full at some time previous to the period when it did happen; for a vacancy to happen during the recess of the Senate, the office must have been full during their session prior to, and at the commencement of their recess.” (emphasis added). Since the envoy positions given to Adams, Gallatin and Bayard had never been filled previously, no vacancy could have “happened” in these offices, and thus the RAC was not triggered.

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So About that Recess Appointments Clause

Article II, §2, cl. 3 of the Constitution (the “Recess Appointments Clause” or “RAC”) 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.”

The Constitution requires that Congress “assemble” at least once a year. Under the 20th Amendment, Congress assembles on January 3, unless a different day is established by law. This begins a “session” of Congress, which lasts until it adjourns sine die or until the session expires automatically by the commencement of a new session in the next year. Normally Congress holds one session per year; thus, one would typically refer to a bill or report as having occurred in either the First or Second Session of a particular Congress (eg, 110th Congress, 2d Sess.). However, nothing prohibits holding more than one session per year, and on occasion there have been Congresses that have held more than two sessions (indeed, the first Congress held three sessions).

According to the January 3, 2012 Congressional Daily Digest: “The Senate met in pro forma session to convene the second session of the 112th Congress at 12:01:32 p.m., and adjourned at 12:02:13 p.m. until 11 a.m., on Friday, January 6, 2012.” So after “assembling” for nearly a full second [Update: as an observant reader points out, that should be nearly a full minute- 41 seconds in fact], the Senate adjourned for 2 days, 22 hours, 59 minutes, and 57.87 seconds. (Hope you are taking notes- this could be on the exam).

On January 4, President Obama made four appointments pursuant to the Recess Appointments Clause. Three of them were to the National Labor Relations Board (NLRB), and one was the director of the new Consumer Financial Protection Bureau (CFPB).

Depending on whom you ask, these actions were clearly constitutional, clearly unconstitutional, or somewhere in between. Most commentators have focused on the question of whether the Senate was in “recess” at the time the appointments were made. Sometimes this question gets confused with whether the Senate was “adjourned” or “in session,” but these questions are more easily answered. The Senate was certainly adjourned on January 4 (then, again, the Senate is adjourned for at least part of virtually every day). Whether the Senate was “in session” depends on whether one is using this phrase as simply the converse of being adjourned (as it often colloquially used) or whether one is asking if January 4 was “during the Session of Congress” (the phrase used in Article I, section 5, cl. 4). If one means the former, the answer is no; if the latter, the answer is yes because the second session of the 112th Congress convened on January 3.

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