Recess Appointments: Focusing on the Wrong Word?

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Jan 10, 2012 No Comments ›› John Eidsmoe Obama_Cordray

Recess Appointments: Focusing on the Wrong Word?

President Obama has stirred controversy by appointing several persons (http://www NULL.whitehouse NULL.gov/the-press-office/2012/01/04/president-obama-announces-recess-appointments-key-administration-posts) to powerful positions without seeking Senate confirmation (http://townhall NULL.com/columnists/fredwszolek/2012/01/09/obama_recess_appointments_the_worst_kind_of_politics). He claims authority to do this based upon Article II, § 2 of the Constitution, which states:

“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.”

Some Senators are outraged by these appointments, claiming the Senate is not in recess. Technically they are right; the Senate has not officially recessed, and business is still being conducted. But President Obama says this is a sham (http://www NULL.baltimoresun NULL.com/business/consuming-interests-blog/bal-consuming-interests-obama-to-defy-senate-republicans-and-appoint-cfpb-director-20120104,0,4478985 NULL.story), because only a few Senators are on the floor, and they have refused to formally recess only to prevent him from making recess appointments.

If this goes to court, I think the Senators will prevail. The courts general show considerable deference to other branches of government. If the Senate has not officially recessed, I think it unlikely that the courts would look behind that formality and say the Senate is actually in recess even though they haven’t formally adjourned.

But earlier today my Georgia friend Richard Gruetter helped me to realize that we may be focusing on the wrong word of this constitutional provision. Rather than trying to define the word “recess,” we should focus on the word “happen.”

The provision delegates to the President the power to fill all vacancies “that may happen during the Recess of the Senate.” The most common definitions of the word “happen” are “To come to pass; come into being; take place” (American Heritage Dictionary), “come to pass, come into being, become reality” (Online Dictionary). These definitions suggest that the phrase “that may happen during the Recess of the Senate” sets forth a pre-condition: the position must become vacant while the Senate is in recess. The President, then, may use the power to make recess appointments only for positions that become vacant while the Senate is in recess. He may not use the recess appointment power to appoint people to offices that were vacant before the Senate recessed, positions that he failed to fill while the Senate was in session, or nominations that the Senate refused or failed to confirm.

This is important. Even if a court were to conclude that the Senate is actually in recess, the President cannot use his recess appointment power because the vacancy occurred before the Senate recessed.

This seems consistent with the Framers’ original design. They were wary of giving the President too much power, and as a check on executive power they required that many federal offices could be filled by the President only with Senate confirmation. But they also recognized that the Senate would not be in session much of the time, and that emergency vacancies might require immediate Presidential action. They therefore gave the President the recess appointment power to meet these emergencies. They certainly did not intend this provision to be a loophole by which the President could make an “end run” around the Senate.

Thanks, Richard, for bringing this to my attention, and, hopefully, to the attention of the Senate and the public as well.

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