Constitutional Purpose of Recess Appointments
by P.A. Madison on January 8th, 2012
Since recess appointments have been getting a great deal of press attention lately, and because it appears Obama and Congress don’t have a firm understanding of the actual text and history of the clause; I thought would quickly explain the constitutional purpose of the recess clause beginning with its earliest roots.
The recess clause to the Constitution was proposed by North Carolina delegate Richard Dobbs Spaight during the federal convention, who thought it might be a good idea for the federal Constitution to mimic the North Carolina Constitution in regards to recess appointments.
Recess appointments served an important function because the power to make appointments was generally shared by both the executive and the legislature who might have long recesses. It was common for many State legislative bodies to have biennial sessions, leaving potentially important vacancies to occur during recess of the legislative body, such as sheriffs and constables, to go for some time before being filled if there was no exception for the executive to make appointments while the legislature was not in session.
The language of the federal recess clause bears this truth in the words, “The 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.” Obviously appointing someone to fill a vacancy that is already before the Senate for their advice and consent cannot be considered a vacancy occurring during the next recess of the Senate. An 1845 Attorney General opinion confirms this: “If vacancies are known to exist during the session of the Senate, and nominations are not then made, they cannot be filled by executive appointments in the recess of the Senate.”
Alexander Hamilton explained the recess clause this way:
The ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently 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.”
Hamilton added in 1799 that, “[i]t is clear, that independent of the authority of a special law, the President cannot fill a vacancy which happens during a session of the Senate.”
In conclusion, it would be rather absurd to treat the recess clause as a tool for the President to use to circumvent the Senates constitutional advice and consent role in approving appointments to fill vacancies, especially with the clear constitutional limitation of filling vacancies that occur only during a recess. Appointments for vacancies that occur during a Senate session can only be filled through the Senates advice and consent. The senate or court could remedy any illegal appointments to fill vacancies by the President that occur while the Senate is in session, or while the appointment is already before the Senate and the Senate goes into recess, by immediately declaring the appointment void.