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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).

The Civil War Congress

During the Civil War, the Senate became exercised by President Lincoln’s aggressive use of the RAC, including his recess appointments of hundreds of military officers. On December 16, 1862, Senator Hale offered the following resolution, which was adopted by unanimous consent:

Resolved, That the Committee on the Judiciary be instructed to inquire whether the practice, which to some extent prevails in some of the departments of the government, of appointing officers to fill vacancies which have not occurred during the recess of Congress, but which existed at the preceding session of Congress, is in accordance with the Constitution; and, if not, what remedy shall be applied.

On January 28, 1863, the Judiciary Committee reported as instructed by the Senate. Its report analyzed the language of the RAC, beginning with the word “vacancy”:

[I]t is the want of an incumbent authorized to perform authorized to perform the functions of the office. It may happen by death, resignation, or any other manner the statute may point out; and practically, under the Constitution, it has been held to occur by virtue of the act of removal by the President of one incumbent and the appointment of another to his place.

The Committee then turns its attention to the key question before it:

When must the vacancy, which may thus be filled and the appointment to which is thus found to terminate, accrue or spring into existence? May it begin during the session of the Senate, or must it have its beginning during the recess? We think the language too clear to admit of reasonable doubt, and that, upon principles of just construction, this period must have its inceptive point after one session has closed and before another session has begun. It cannot, we think, be disputed that the period of time designated in the clause as “the recess of the Senate,” includes the space beginning with the indivisible point of time which next follows that at which it adjourned, and ending with that which next precedes the moment of the commencement of their next session.

The Committee acknowledged the line of executive authority contrary to its position, running from Wirt in 1823 to Cushing in 1855. It allowed that “such a practical construction [would be] entitled to [great weight] in considering the meaning and intent of a doubtful clause in a public act.” (emphasis in original). But the Committee viewed the RAC’s language and meaning as plain, and the executive branch’s interpretation as “forced and unnatural.”

The executive branch position was based, the Committee stated, on giving overriding importance to the purpose of keeping offices filled, while ignoring the equally important purpose of ensuring the fitness of officers through the advice and consent process. Accepting the executive branch position would render the advice and consent power “entirely inoperative and nugatory” because “if the President may in the recess appoint to and fill an office which during a session of the Senate was vacant, he may omit to make any nomination at a subsequent session, and at the close of it again appoint him under the idea of filling a vacancy, and so on from session to session.”

The Committee noted that if its construction of the RAC were found to cause serious inconvenience, Congress could always enact a law that “whenever a vacancy or non-occupancy shall occur during the session in any important office,” the President would be authorized to order the duties of the office to be performed by some officer already confirmed by the Senate. This statement by the Committee might implicitly suggest that it doubted Congress’s constitutional power to authorize the filling of vacancies beyond the terms of the RAC.

On the same day as the Committee issued its report, the Senate took up an amendment to the appropriations bill that, among other things, prohibited payment “to any person appointed during the recess of the Senate, to fill a vacancy in any existing office, which vacancy existed while the Senate was in session and is by law required to be filled by and with the advice and consent of the Senate, until such appointee shall have been confirmed by the Senate.” It is clear that this amendment was designed as a remedy for the unconstitutional practices identified by the Senate Judiciary Committee. As Senator Fessenden remarked, “[i]t may not be in our power to prevent the appointment, but it is in our power to prevent the payment, and when payment is prevented, I think that will probably put an end to the habit of making such appointments.”

The brief debate over the measure made it apparent that several senators shared the Judiciary Committee’s view that the President lacked the constitutional power to fill vacancies existing prior to a recess. No senator clearly expressed the contrary view, although Senator Harris, a close Lincoln ally, pointed to the line of executive branch opinions beginning with Wirt and voiced a procedural objection: “If the Senate chooses to reverse the action of the Government for the last forty years I have nothing to say upon the subject; but do not let us anticipate that grave question upon an amendment to an appropriations bill.” If any senator supported Bibb’s “true interpretation” of the RAC, he did not speak up.

In any event, the amendment passed and was enacted into law (an amended version of the act is now codified at 5 USC § 5503).


Congress’s Alleged “Acquiescence”

There is a widespread though somewhat perplexing view that the passage of this statute reflected congressional “acquiescence” in the executive branch practice of filling vacancies which arose prior to a recess. See, e.g., Edward Hartnett, Recess Appointments of Article III Judges: Three Questions, 28 Cardozo L. Rev. 377, 405 (2005) (“In effect, Congress recognized and acquiesced in such recess appointments but guarded against abuse by putting the appointee at risk of serving without pay if the Senate did not ultimately confirm him”); Testimony of John Elwood before the House Judiciary Committee (Feb. 15, 2012) (referring to “the Executive Branch’s assertion of authority (eventually acquiesced in by Congress) that the President can appoint officials not only when a vacancy first occurs during the Senate’s recess, but also when the vacancy predates the recess but continues into it.”).

Acquiescence as acceptance of the executive branch’s constitutional position.

It seems obvious that Congress in no sense accepted or agreed with the executive branch interpretation of the RAC. To the contrary, the Senate asked the Judiciary Committee to address the constitutional question, the Committee reported its unequivocal rejection of the executive branch position, and the Senate then proceeded to adopt legislation designed to prevent (or at least discourage) unconstitutional recess appointments in the future. The Senate could scarcely have been clearer in registering its constitutional disagreement with the executive.

It is true that the Senate recognized (i.e., was aware of) the executive branch’s broad interpretation of the RAC as reflected in the opinions of Wirt and his successors. Even this, however, may be an overstatement with regard to original vacancies because the executive branch had not yet stated an unequivocal position as of 1863.

Although Cushing had suggested in 1855 that the RAC might be used for original vacancies, it was not until 1868 that the executive branch firmly took this position. When Attorney General Evarts considered whether the President could use the RAC to fill an original vacancy, he acknowledged that the only prior opinion to consider “the precise question here raised” was that of Attorney General Mason in 1845, who had found that the RAC could not be used to fill an original vacancy. Evarts rejected Mason’s view, however, finding that there was no basis for distinguishing between original vacancies and other vacancies for purposes of the RAC. 12 Op. Atty Gen. 455 (1868).

Evarts’ conclusion was reiterated in later Attorney General opinions. In 1889, for example, Attorney General Miller also found that a newly created office could be filled under the RAC. In addressing whether an original vacancy “happens” within the meaning of the RAC, Miller states:

In reaching the above conclusions, I have not been forgetful that the word “happen” in the Constitution suggests casualty or absence of premeditation; but it is incompatible with the character of the high office with which the votes of an intelligent people have entrusted the President, to presume that a power so necessary to the public welfare will be used needlessly, when time and opportunity are afforded for intelligent and judicious action during the session of the Senate.

19 Op. Atty Gen. 261, 263-64 (1889). Here Miller is looking at the “absence of premeditation” not from the standpoint of the Congress that created the new office, but with regard to the circumstances that cause the office to remain vacant in the recess of the Senate. He overlooks the fact that since Congress knew the office would initially be unoccupied, and chose not to give the President the authority to fill it, the vacancy can hardly be considered unpremeditated.

Whatever the merits of these post-Civil War opinions, the 1863 Congress was obviously not aware of them, and its views were very much to the contrary.

Acquiescence as authorization.

Perhaps, however, the argument that Congress “acquiesced” in the executive branch’s interpretation of the RAC really means that Congress implicitly authorized the President to fill vacancies so long as he abided by the pay restrictions contained in the law. This is a difficult argument to make with regard to the 1863 act, which clearly was not intended to authorize anything. To the contrary, it was designed to prevent what the Senate regarded as improper recess appointments to the extent that it was possible to do so.

A stronger case can be made, however, with regard to the modern version of the statute. Congress amended the law in 1940 to permit recess appointees, who filled vacancies which arose prior to the recess, to be paid under certain circumstances. These include the situations which concerned Attorney General Wirt, such as where a vacancy arises within 30 days of the end of a session or where the Senate rejects a nomination in the last 30 days of a session (so long as the recess appointment is given to someone other than the rejected nominee).

By allowing recess appointees to be paid under these circumstances, Congress implicitly approved such appointments. One may argue, therefore, that recess appointments which qualify for payment under 5 U.S.C. § 5503 have been authorized by Congress and are therefore valid, regardless of whether one agrees with the Wirt interpretation of the RAC.

Of course, if Congress may authorize recess appointments beyond those authorized by the RAC, it may also modify or withdraw this authorization, either generally or for specific offices. It should be noted, moreover, that while the executive branch does not concede that the President’s authority to make recess appointments is dependent on the statutory authorization, it also has not challenged Congress’s authority to restrict payments to recess appointees. Thus, the executive branch has “acquiesced,” at least to some extent, to congressional regulation of recess appointments outside the core RAC power.

      Acquiescence as waiver.

One other possible meaning of “acquiescence” bears mentioning. It could be argued that the Senate has acquiesced in the executive branch’s use of the RAC power, not by accepting the Wirt interpretation or by affirmatively authorizing the contested practices, but by failing to take action to stop these practices. By this inaction, the argument would go, the Senate has effectively waived its right to object to potentially unconstitutional recess appointments.

If this argument is taken to mean that the Senate has effectuated a permanent transfer of power from itself to the President, it seems to me that this must be mistaken. The Appointments Clause limits Congress’s ability to transfer appointment authority to the President even by law (i.e., Congress cannot vest the President with the sole authority to appoint principal officers), and it would seem anomalous to conclude that the Senate could transfer the same or greater authority by inaction. As Professor Rappaport observes, “[t]he appointment provisions of the Constitution are not simply designed to protect the Senate’s rights, but to protect the people from abusive government.”

On the other hand, it would not be unreasonable to assume that the responsibility for vindicating the Senate’s advice and consent function lies principally with the Senate itself, and that the Senate’s action or inaction might be taken into account if another branch is asked to intervene with regard to a particular appointment.

The Senate’s “acquiescence” in this sense evidently influenced the 11th Circuit’s decision in Evans v. Stephens, 387 F.3d 1120 (11th Cir. 2004), which involved a challenge to President Bush’s recess appointment of a federal judge. The court begins its analysis by stating that the President’s actions are entitled to a presumption of constitutionality, but it immediately qualifies this in a footnote by observing that “[w]e do not have before us and do not address a circumstance in which the Senate, itself, is a litigant challenging the President’s act.” The unmistakable inference is that the President’s acts might be of a type that could be declared illegal if challenged by the Senate, but not by a private party.

This concept may also explain the otherwise bizarre suggestion by Professor Akhil Amar and Timothy Noah that legal challenges to President Obama’s recent recess appointments could be blocked if 51 senators signed a letter “stating that the president is entitled to make a recess appointment when the Senate actively denies him that constitutional power through procedural gimmicks- defined however they like, or not defined at all, if they prefer.”

It is difficult to see how such a letter could make Obama’s recess appointments constitutional if, as Noah had suggested the previous day, they were unconstitutional to begin with. Nor does it seem likely that a court would give any kind of deference to the legal views of 51 senators expressed in such a letter. It is possible, however, that a court might take the letter as evidence of sufficient senatorial acquiescence that, on quasi-political question grounds, the court ought not to intervene in the matter.

On the other hand, it might be argued that the “procedural gimmicks” identified by Amar and Noah are evidence cutting in the opposite direction. In other words, the fact that the Senate has held pro forma sessions precisely to block the President’s use of the RAC power demonstrates non-acquiescence distinguishing this case from Evans and other cases where the use of the RAC power has been challenged.


 If the foregoing demonstrates anything, it is that the apparently simple language of the RAC has produced no shortage of open questions (and we still haven’t even reached what constitutes a “recess”!).

In future posts, perhaps we will make some progress in closing them.

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