One of the key issues involving the Recess Appointments Clause is the
question when the vacancy has to arise: must it arise during the recess
(the arise interpretation) or can it first arise at any time (the
exist interpretation). To me, the language of the Recess Appointments
Clause is clear on the subject: “The President shall have power to fill
up all vacancies that may happen during the recess of the Senate.” It
requires the vacancy to arise during the recess – that is, the arise
interpretation.
Initially, proponents of the exist interpretation
used to claim that the earliest Attorney Generals supported their
position. But after I pointed
out that the first Attorney General, Edmund Randolph, followed the
arise interpretation, the advocates of the broad power have argued that
the exist interpretation was at least adopted early – in 1823 by
Attorney General Wirt. Thus, they claim a long pedigree for their view,
even if not back to 1789.
Here, I want to argue that they should
not be relying on the Wirt opinion. While it is true that that opinion
does depart from the arise interpretation,” it does not support modern recess appointment practices. Rather, it condemns them. 
Wirt’s
opinion starts out by examining the Clause’s language and he concludes,
not surprisingly, that the language better fits the arise
interpretation. But he ultimately rejects that view based on the
purpose of the provision. As Wirt states: “The [arise interpretation]
seems to me most accordant with the letter of the constitution; the
[exist] most accordant with its reason and spirit.”
But why does
Wirt think the exist interpretation – which would allow the President
to make a recess appointment for a vacancy that does not arise during
the recess so long as the appointment is made during the recess – is
accordant with the Clause’s reason and spirit? Here is what he says:
Put
the case of a vacancy occurring in an office, held in a distant part of
the country, on the last day of the Senate's session. Before the
vacancy is made known to the President, the Senate rises. The office may
be an important one; the vacancy may paralyze a whole line of action in
some essential branch of our internal police; the public interests may
imperiously demand that it shall be immediately filled. But the vacancy
happened to occur during the session of the Senate; and if the
President's power is to be limited to such vacancies only as happen to
occur during the recess of the Senate, the vacancy in the case put must
continue, however ruinous the consequences may be to the public.
Wirt continues that a situation:
which
has prevented the co-operation of the Senate may . . . arise from
various other causes: the sudden dissolution of that body by some
convulsion of nature; the falling of the building in which they hold
their sessions: a sudden and destructive pestilence, disabling or
destroying a quorum of that body; such an invasion of the enemy as
renders their reassemblage elsewhere impracticable or inexpedient; and a
thousand other causes which cannot be foreseen. It may arise, too, from
their rejecting a nomination by the President in the last hour of their
session, and inadvertently rising before a renomination can be made. In
all these cases there is no guilt, either on the part of the Senate or
of the President; but, by some casualty, the vacancy happens to continue
and to exist in the recess; and the public good, nay, even the safety
of the nation, may require it to be forthwith filled.
Notice what
Wirt is saying. The arise interpretation would be a problem if an
emergency or a mistake lead to the failure to appoint someone during the
session. He then writes that “in all these cases there is no guilt,
either on the part of the Senate or of the President” for failing to
appoint a nominee.
The implication is that if the President made a
recess appointment for a different reason – if he used the power to
intentionally bypass the Senate confirmation process – then there would
be guilt on his part.
How do modern recess appointment practices
work? In recent years, the President will nominate an individual for an
ordinary advice and consent appointment and the Senate – either because
a minority filibusters or because the majority does not like a nominee –
will refuse to confirm the person. The President thus makes a recess
appointment because he cannot get the individual confirmed by the
Senate. The recess appointment power is not used as a supplement to the
appointment power because accidental circumstances prevented an
ordinary appointment. Instead, it is being used as an end run around
the ordinary appointment power. And I think it is clear that the
reasoning of Attorney General Wirt’s opinion would have condemned such
behavior on the part of the President.
Update: I corrected the name for the exist interpretation, which I had mistakenly referred to as the happen interpretation.
(Cross posted at the Liberty Law Blog)
Posted at 7:34 AM