Earlier this year, the Harvard Journal of Law and Public Policy published my article showing that the Constitution’s Recess Appointments Clause limits presidential vacancy appointments far more than President Obama (and most prior Presidents) have claimed. I posted earlier on the same subject here.
The issue is before the Supreme Court right now.
The Recess Appointments Clause states in part that, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate. . . ” In preparing the article I examined a wide range of Founding-Era documents, including early state constitutions and legislative records, to determine when a vacancy “happens” and what the Founders meant by “the Recess” of a legislative body. I learned that a vacancy “happens” only when it is created. Thus, for the President to fill a vacancy, it must have been created during the Recess, not merely continue into it.
I also learned that, while the simple noun “recess” could refer to any legislative break, the phrase “the Recess” referred only to the period between formal legislative sessions.
Another project has kept me in early American legislative documents, and new discoveries continue to confirm that “the Recess” meant only the break between sessions.
For example, I was able to obtain a copy of the hard-to-get 1784 journal of the Massachusetts House of Representatives. It contains a message from Governor John Hancock specifically referring to the time between the sessions as “the recess.” Early Maryland legislative records similarly contain repeated references to a prior or approaching period between sessions as “the recess.”
The same story recurs in New Jersey. A September 10, 1776 legislative committee report from that state clearly distinguished between the “Session” and “the Recess.” A May 19, 1786 report of the Governor, issued two days after the session began, provided the legislature with correspondence the governor had received during “the Recess of the House.” And a Nov. 30, 1789 resolution authorized the city mayor to take control of legislative property “during the recess of the Legislature”—that is, not during short breaks but when lawmakers went home at the end of their session.
Finally, page 147 of another hard-to-get source (the 1776 journals of the South Carolina lower house) reproduces a legislative resolution ordering that a report “be referred to the Committee on the state of the Treasury to consider and report to the House proper ways and means of supplying the Treasury in the recess of the House with such monies as may be immediately wanted for public service…” Obviously, there would be no need to do this if “the recess” referred to anything but the lengthy intersession break, because during shorter breaks lawmakers were in the capital city and available to appropriate funds if necessary.