EARLY PRESIDENTIAL PRACTICE AND THE RECESS APPOINTMENTS CLAUSE

Christina Lee, ConSource SCOTUSource FellowHarvard Law School, JD ‘14

Introduction and Overview

Early presidential practice records reveal that the first presidents did not hesitate to utilize the Recess Appointments Clause when needed, and when it favored them politically. From Washington to Monroe, the early presidents freely used the recess appointments power to fill positions that had extended vacancies and largely rejected a strict interpretation of the Recess Appointments Clause. However, the appointments do not shed much light on the power to appoint during intra-session recesses, as the recess appointments mostly fell during inter-session recesses of the Senate, rather than intra-session recesses.

Though some debate regarding the interpretation of the clause existed among prominent Founders, such as Alexander Hamilton and James Madison, writings by the presidents demonstrate that they were not overly concerned with the constitutional technicalities of when vacancies occurred or when the Senate recessed. Rather, as the presidents were molding their administrations, they were more concerned with the political ramifications of their appointments than in experimenting with the limits of their presidential authority.

Unsettled Interpretation during Early Presidential Administrations

Debates about the Recess Appointment Clause that originated in the ratification period continued into the first presidential administrations. As presidential practice developed, new controversies about the interpretation arose and consisted as presidents changed.

I. The Randolph Opinion during Washington’s Administration Sought to Establish a Narrow Interpretation of the Recess Appointments Clause

a. Randolph’s Narrow Interpretation

Mid-way through Washington’s presidency, Edmund Randolph, the Attorney General, provided an opinion of the Recess Appointments Clause, arguing for a strict interpretation of the Recess Appointments Clause. The Opinion took several clear analytical steps to get to Randolph’s interpretation of the clause:

The Spirit of the Constitution favors the participation of the Senate in all appointments. But as it may be necessary oftentimes to fill up vacancies, when it may be inconvenient to summon the senate a temporary commission may be granted by the President. This power then is to be considered as an exception to the general participation of the Senate. It ought too to be interpreted strictly. For altho’ I am well aware, that a chief Coiner for satisfactory reasons could not have been nominated during the last Session of the Senate; Yet every possible delicacy ought to be observed in transferring power from one order in government to

another. It is true that the Senate may finally disapprove. But they are not left to a Judgment absolutely free, when they are to condemn the appointment of a Man actually in Office. In some instances indeed this must be the case; but it is in them a case of necessity only; as where the Officer has died, or resigned during the recess, or a person appointed during the Session shall not notify his refusal to accept, until the recess.1

Randolph first made clear that the nomination for a “chief Coiner” did not occur during a session of the Senate.2 Then Randolph considered whether the office was actually vacant, defining vacant as “when no officer is in the exercise of it.”3 After finding that the office was indeed vacant, the Attorney General raised the question of whether the vacancy had “happened during the recess of the Senate.”4 Randolph wrote that the vacancy “is now the same and no other vacancy, than that, which existed on the 2nd. of April 1792. It commenced therefore on that day or may be said to have happened on that day.”5

The Randolph Opinion continued to discuss the “Spirit of the Constitution” as favoring “participation of the Senate in all appointments,” acknowledging that some instances require temporary appointments when inconvenient to convene the Senate.6 However, Randolph believed that the Recess Appointments Clause should be interpreted strictly, because when a vacancy first comes about during a Senate session, the Senate may have an opportunity to provide input on the appointment.7 Therefore, under Randolph’s interpretation, the President would be able to use a recess appointment only when the vacancy first arose during the recess of Senate:

But is it a vacancy which has happened during the recess of the Senate? It is now the same and no other vacancy, than that, which existed on the 2nd. of April 1792. It commenced therefore on that day or may be said to have happened on that day.”8

b. Randolph’s Views During the Ratification Period

1 See Edmund Randolph, Opinion on Recess Appointments (July 7, 1792), 24 THE PAPERS OF THOMAS JEFFERSON 165-67, available at http://rotunda.upress.virginia.edu/founders/TSJN-01-24-02-0176 [accessed 31 Oct 2013]. In November 1793, Washington recess-appointed Robert Scot to be the first Engraver of the Mint, a position created a statute enacted in 1792. The vacancy first arose when the statute was first passed and filled during a later recess after at least one intervening session. The possibility of a recess appointment for the first Engraver of the Mint led Edmund Randolph, the Attorney General, to issue an opinion on July 7, 1972, regarding the interpretation of the Recess Appointments Clause. 2 Id.3 Id. 4 Id.5 Id. (emphasis in original). 6 Id. 7 Id. 8 Id.

Randolph not only played an important role in developing the interpretation of the Recess Appointments Clause during the first presidency but also was a major dissenter of the Constitution during the ratification period. As a result, while it is possible that Randolph’s opinion may have evolved during his tenure as Attorney General, Randolph’s attitude toward the Constitution, as seen during the ratification, may have contributed to his narrow interpretation of the Recess Appointments Clause.

Randolph famously refused to sign the Constitution. Moreover, at one point, he objected to the Recess Appointments Clause as written in the Constitution as a form presidential power. In a letter, he listed his reasons for not signing:

But I am sanguine in hoping that in every other justly obnoxious cause, Virginia will be seconded by a majority of the States. I hope that she will be seconded. 1. In causing all ambiguities of expression to be precisely explained. 2. In rendering the president ineligible after a given number of years. 3. In taking from him the power of nominating to the judiciary offices, or of filling up vacancies which may there happen during the recess of the senate, by granting commissions which shall expire at the end of their next sessions….9

Nevertheless, in the same letter, Randolph did acknowledge that he supported the Constitution as a private citizen:

These were my opinions, while I acted as a Delegate; they sway me, while I speak as a private citizen. I shall therefore cling to the union, as the rock of our salvation, and urge Virginia to finish the salutary work, which she has begun. And if after our best efforts for amendments they cannot be obtained, I scruple not to declare, (notwithstanding the advantage, which such a declaration may give to the enemies of my proposal,) that I will, as an individual citizen, accept the constitution; because I would regulate myself by the spirit of America.10

c. Other Dissenting Opinions of the Constitution during the Ratification

Though Randolph was not alone in opposing the constitutional design of the Recess Appointments Clause during the Ratification Period, his position is distinguishable from others. While Randolph was worried about the expansion of presidential power through the appointments power, others, mostly Anti-Federalists, were concerned about the Senate involvement in the appointments process.

i. Imbalance of Power between the Branches

Several prominent figures during the Ratification Period warned that Appointments Clause, in general, would result in an imbalance of power between the branches of government. In

9 See Edmund Randolph, “Publication of Edmund Randolph’s Reasons for Not Signing the Constitution,” December 27, 1787, available at http://rotunda.upress.virginia.edu/founders/RNCN-02-08-02-0001-0173 [accessed 03 Dec 2013]10 Id.

particular, George Mason, an Anti-Federalist leader from Virginia, believed that the President would become a tool of the Senate:

The President of the United States has no Constitutional Council (a thing unknown in any safe and regular government) he will therefore be unsupported by proper information and advice; and will generally be directed by minions and favourites—or he will become a tool to the Senate—or a Council of State will grow out of the principal officers of the great departments; the worst and most dangerous of all ingredients for such a Council, in a free country; for they may be induced to join in any dangerous or oppressive measures, to shelter themselves, and prevent an inquiry into their own misconduct in office.11

Others worried about the potential corruption that would arise in the government given that the Senate also had the power to impeach officers. During the Pennsyvania ratification debates, in the Dissent of the Minority, Anti-Federalists collectively summarized their reasons for opposing the signing of the Constitution. With respect to the appointments structure in the Constitution, the Dissent wrote:

And this great power may be exercised by the president and 10 senators (being two-thirds of 14 which is a quorum of that body). What an inducement would this offer to the ministers of foreign powers to compass by bribery such concessions as could not otherwise be obtained. It is the unvaried usage of all free states, whenever treaties interfere with the positive laws of the land, to make the intervention of the legislature necessary to give them operation. This became necessary, and was afforded by the parliament of Great Britain in consequence of the late commercial treaty between that kingdom and France. As the senate judges on impeachments, who is to try the members of the senate for the abuse of this power!12

ii. Improper Blending of Powers

Others believed that the structure of the appointments power resulted in an improper blending of powers between the executive and legislature violating separation of powers. William Findley, a major dissenter during the Ratification Period and future member of Congress, believed the Senate and the President would collude and overpower the House:

Indeed, I see nothing to hinder the President and Senate, at a convenient crisis, to declare themselves hereditary and supreme, and the lower house altogether

11 See George Mason, “Objections to the New Constitution,” Massachusetts Centinel, November 21, 1787, available at http://rotunda.upress.virginia.edu/founders/RNCN-02-04-02-0003-0080 [accessed 17 Sep 2013]. Executive councils were commonplace in state constitutions during this time period. See, e.g., James Madison, Letter to Thomas Jefferson (October 14, November 1, 1787), available at http://rotunda.upress.virginia.edu/founders/RNCN-02-08-02-0001-0067 [accessed 19 Sept 2013].12 The Dissent of the Minority of the Convention, The Pennsylvania Packet, December 18, 1787, available at http://rotunda.upress.virginia.edu/founders/RNCN-02-02-02-0003-0003.

useless, and to abolish what shadow of the state constitutions remain by this power alone; and as the President and Senate have all that influence which arises from the creating and appointing of all offices and officers, who can doubt but at a proper occasion they will succeed in such an attempt? and [sic] who can doubt but that men will arise who will attempt it?13

Richard Henry Lee, another prominent Anti-Federalist from Virginia, argued that the structure of appointments resulted in an inequality of representation from the states, because the House of Representatives had no input in the appointments process. He similarly wrote:

That the legislative and executive powers are blended together—That the President and Senate have all the executive, and two thirds of the legislative, power—and, in some weighty instances, (as making treaties, which are to be the laws of the land) the whole legislative and executive powers—That, they appoint all civil and military officers—and the Senate try all impeachments, even of their own members, or officers by them appointed—That this formidable combination of power is without responsibility—That the only check in favour of the democratick [sic] principle is the House of Representatives, which is a mere shred or rag of representation.14

Though opposition to the Recess Appointments Clause may have played a in Randolph’s interpretation of the clause, he was not the only member of Washington’s administration who had participated in the drafting and ratifying of the Constitution and consequently had views about the scope of presidential power under the Recess Appointments Clause.

II. Hamilton’s Support for a Broader Interpretation of the Recess Appointments Clause

a. Hamilton’s Response to the Randolph Opinion

Alexander Hamilton was an early, prominent supporter of the president’s Recess Appointments powers. He responded to Randolph’s Opinion by arguing for a broader interpretation focused on the public need for recess appointments.

With respect to Washington’s appointments, Hamilton focuses on the appointee’s character and ability to well in the position:

When I was first Officially informed by Mr Coxe of the Division of the District of Maryland into three Surveys I was led to believe [sic] that if the President had conceived he could constitutionally appoint the Inspector during the recess of the

13 Hampden, Pittsburgh Gazette, February 16, 1788, available at http://rotunda.upress.virginia.edu/founders/RNCN-02-02-02-0004-0002-0015 [accessed 15 Oct 2013]. 14 Richard Henry Lee, Objections to the Constitution, Salem Mercury, January 8, 1788, available at http://rotunda.upress.virginia.edu/founders/RNCN-02-05-02-0002-0107 [accessed 17 Sep 2013].

Senate the Appointment would have immediately taken place. As nothing has been done in this Business since the Meeting of Congress I am becoming very unhappy least there may be some doubts of the Character on whom the Choice should fall. . . . I have no View in it but the public Interest [sic] and I do most solemnly assure you that the promotion of that is the Motive with me for wishing Mr. Perry’s appointment.15

b. Hamilton’s Position during the Ratification of the Constitution

Hamilton’s response to Randolph’s interpretation is consistent with Hamilton’s emphasis on the shared powers between the branches and the public interest seen in the Federalist Papers and other writings during the ratification period. Hamilton minimized any worries about the imbalance of powers and blending of powers between the branches. He believed that the shared powers, the President’s sole ability to nominate and the advice and consent of the Senate, would check the President and the Senate, preventing any one branch from overpowering the other. In Federalist No. 67, Hamilton wrote:

First. The relation in which that clause stands to the other, which declares the general mode of appointing officers of the United States, denotes it to be nothing more than a supplement to the other; for the purpose of establishing an auxiliary method of appointment in cases, to which the general method was inadequate. The ordinary power of appointment is confided 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 authorise the President singly to make temporary appointments “during the recess of the Senate, by granting commissions which should expire at the end of their next session.16

In the same essay, Hamilton emphasized the limited application of the Recess Appointments Clause. Because he saw this as a power that only emerged during a recess of the Senate when the primary appointments process was unavailable or impracticable, Hamilton saw the recess appointment power as a secondary method of appointing officers:

The last of these two clauses, it is equally clear, cannot be understood to comprehend the power of filling vacancies in the Senate, for the following reasons-First. The relation in which that clause stands to the other, which declares the general mode of appointing officers of the United States, denotes it to be nothing more than a supplement to the other; for the purpose of establishing an auxiliary method [of] appointment in cases, to which the general method was

15 Alexander Hamilton, Letter to George Gale, December 20, 1792, THE PAPERS OF ALEXANDER HAMILTON 342-44 (ed. Harold C. Syrett, New York University Press: 1967), available at http://founders.archives.gov/documents/Hamilton/01-13-02-0177, ver. 2013-09-2816 The Federalist 67, New York Packet, March 11, 1788, available at http://consource.org/document/the-federalist-no-67-1788-3-11/

inadequate. The ordinary power of appointment is confided 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 authorise [sic] the President singly to make temporary appointments ‘during the recess of the Senate, by granting commissions which should expire at the end of their next session.’17

In doing so, Hamilton reasoned that the President was given this auxiliary power for a particular purpose – in the public’s interest. Moreover, in Federalist No. 67, Hamilton emphasized the to the temporary nature of vacancies contemplated by the Clause:

Third. The time within which the power is to operate, "during the recess of the Senate," and the duration of the appointments, "to the end of the next session" of that body, conspire to elucidate the sense of the provision, which, if it had been intended to comprehend senators, would naturally have referred the temporary power of filling vacancies to the recess of the State legislatures, who are to make the permanent appointments, and not to the recess of the national Senate, who are to have no concern in those appointments; and would have extended the duration in office of the temporary senators to the next session of the legislature of the State, in whose representation the vacancies had happened, instead of making it to expire at the end of the ensuing session of the national Senate. The circumstances of the body authorized to make the permanent appointments would, of course, have governed the modification of a power which related to the temporary appointments; and as the national Senate is the body, whose situation is alone contemplated in the clause upon which the suggestion under examination has been founded, the vacancies to which it alludes can only be deemed to respect those officers in whose appointment that body has a concurrent agency with the President.18

c. Response to Hamilton’s Arguments

Hamilton vehemently defended the design of the appointments process in the Constitution. He argued that the House was intentionally left out of the appointments process to guard against votes on a whim:

A body so fluctuating, and at the same time so numerous, can never be deemed proper for the exercise of [the appointment] power. Its unfitness will appear manifest to all, when it is recollected that in half a century it may consist of three or four hundred persons. All the advantages of the stability, both of the executive and of the senate, would be defeated by this union; and infinite delays and

17 Id.18 Id.

embarrassments would be occasioned. The example of most of the states in their local constitutions, encourages us to reprobate the idea.19

However, in practice, the House maintains the ability to influence the process through the Adjournment Clause. The Adjournment Clause states that “[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.” As a result, contrary to Hamilton’s efforts, in practice, the House still exerts influence over when an appointment can take place. Specifically, since the House must consent to when the Senate can take a recess, the House may impact when a vacancy occurs, and thus when the President may make a recess appointment.

Similarly, one response to Hamilton’s public interest argument involves the Convene Congress Clause. Article 2, Section 3 of the Constitution states that “[the President] may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper....” One interpretation of Article 2, Section 3 of the Constitution, the Convene Congress Clause, is that the president may under convene the Senate to fill vacancies as public interest constitutes an extraordinary circumstance.

However, Joseph Story’s20 discussion of the Convene Congress Clause cuts against this argument:

The power to convene congress on extraordinary occasions is indispensable to the proper operations, and even safety of the government. Occasions may occur in the recess of congress [sic], requiring the government to take vigorous measures to repel foreign aggressions, depredations, and direct hostilities; to provide adequate means to mitigate, or overcome unexpected calamities; to suppress insurrections; and to provide for innumerable other important exigencies, arising out of the intercourse and revolutions among nations.

Joseph Story provides a list of circumstances that might constitute “extraordinary circumstances” that is not necessarily exclusive, however the categories included seem to be much more dire than filling an appointment. Story’s discussion of the Convene Congress Clause does not seem to contemplate the possibility of using the Convene Congress Clause for an appointment of an officer.Nonetheless, Hamilton throughout the ratification period and Washington’s administration maintained a broader interpretation of the Recess Appointments Clause compared to Randolph. His letters regarding specific appointments reveal that he was focused on the characters and reputation of appointees rather than the limits of the president’s power. This can be connected to Hamilton’s reasoning for the design of the Recess Appointments Clause during the ratification of the Constitution. As seen in the Federalist Papers, Hamilton perceived the Recess Appointments

19 The Federalist No. 77 (Alexander Hamilton), available at http://consource.org/document/the-federalist-no-77-1788-4-2/20 Joseph Story, prolific legal theorist and Supreme Court justice, wrote Commentaries on the Constitution of the United States during the mid-1800s.

Clause as an auxiliary method to appoint officers during the recess of Congress in the spirit of public interest. This suggests that he was not as concerned about the particularities of whether a vacancy first occurred during a recess; rather, in the public’s interest of filling a vacancy, he appears to have subscribed to a broader interpretation.

III.Adams’ Support for a Broad Interpretation for a Recess Appointment Clause

During Adams’ presidency, a similar issue of the President’s power to make appointments arising during the recess of Senate came to the fore when Adams wanted to promote John Hasting, a Major in the Army, to the position of Captain. Adams subscribed to a distinct view in which the Congress would have to allow the president to have broad power to make recess appointments through a statute. Adams wrote:

It is not upon the Act of the 3d of March Ult. that I aproved [sic] the Claim of an Authority to appoint the offices in Question but upon the Constitution itself. Wherever there is an office, that is not full, there is a Vacancy as I have ever understood the Constitution. To Suppose that the President has Power to appoint Judges and Ambassadors, in the Recess of the Senate and not officers in the Army is to me, a distinction without a difference And a Construction not formed in Law or Sense and very ambarrassing [sic] to the public Service. All Such Appointments to be Sure must be nominated to the Senate at their next Session and Subjected to their Ultimate decision. I have no doubt that it is my Right and my Duty to make the provisional Appointments. Major Lillie has made me a Visit and I was well pleased with his appearance and Conversation. He did not appear to me to be an altered Man. I learn from others that he has been like many other worthy Men, extreamly [sic] unfortunate in Trade and that his Misfortunes have Sometimes affected his Spirits, but an appointment in the Army upon which his heart is Set, it is believed by Col Rice, will restore him compleatly [sic] to himself.21

IV. Unsettled Interpretation During Jefferson’s Administration

Even during Jefferson’s presidency it appears that there is still a question over the official, appropriate interpretation of the Recess Appointments Clause. Jefferson faced the ongoing question of how to interpret the language “to fill all vacancies that may happen to be.” Jefferson himself revealed to be conflicted about how to interpret the meaning of “may happen to fall.” He acknowledged that “this may mean ‘vacancies that may happen to be’ or ‘may happen to fall.’ [I]t is certaintly susceptible to both constructions, and we took the practice of our predecessors as

21 Letter from John Adams to James McHenry (April 16, 1799), in 8 THE WORKS OF JOHN ADAMS, Second President of the United States 632-33 (Boston, 1850-56) [hereinafter Works of John Adams] available at http://galenet.galegroup.com.ezp-prod1.hul.harvard.edu/servlet/MOML?dd=0&locID=camb55135&d1=19000200608&srchtp=ra&c=1&df=f&d2=654&docNum=F3700151549&h2=1&af=RN&d6=654&d3=654&ste=10&stp=Author&d4=0.33&d5=d6&ae=F102108077.

established.”22 In a letter, Jefferson admitted to the need for a clear rule for recess appointments, yet deferred resolution for a later time:

The phrase in the constitution is ‘to fill up all vacancies that may happen during the recess of the Senate.’ this may mean ‘vacancies that may happen to be’ or ‘may happen to fall.’ it is certainly susceptible of both constructions, and we took the practice of our predecessors as the commentary established. this was done without deliberation; and we have not before taken an exact view of the precedents. they more than cover our cases. but I think some of them are not justifiable. we propose to take the subject into consideration, and to fix on such a rule of conduct, within the words of the constitution, as may save the government from serious injury, & yet restrain the Executive within limits which might admit mischief.—you will observe the cases of Read & Putnam, where the persons nominated declining to accept, the vacancy remained unfilled & had happened before the recess. it will be said these vacancies did not remain unfilled by the intention of the Executive, who had, by nomination, endeavored to fill them. so in our cases, they were not unfilled by the intention of the successor, but by the omission of the predecessor. Chas. Lee informed me that whenever an office became vacant so short a time before Congress rose, as not to give an opportunity of enquiring for a proper character, they let it lie always till recess. however this discussion is too long for a letter. we must establish a correct & well digested rule of practice, to bind up our successors as well as ourselves. if we find that any of our cases go beyond the limits of such a rule, we must consider what will be the best way of preventing their being considered as authoritative examples. in the mean time I think it would be better to give the subject the go-by for the present, that we may have time to consider and to do what will be best for the general safety.

Jefferson’s unwillingness to commit to one interpretation or another suggests that he himself was conflicted. Moreover, his hesitation suggests that Jefferson did not feel necessarily bound by the earlier Randolph Opinion. While he noted that “some of them [recess appointments] are not justifiable,” Jefferson recognized that at times an office could become vacancy so close to the end of a congressional session that it was impracticable to make an appointment, resulting in a vacancy.23

V. The Wirt Opinion

The Wirt Opinion, during Monroe’s presidency, definitively rejected Randolph’s interpretation. The Wirt Opinion focused on the interpretation of when the President can constitutionally fill a vacancy that occurs during the recess of the Senate, particularly the interpretation of the word “happen.”24 The Wirt Opinion acknowledged two interpretations of the word “happen”:

22 Thomas Jefferson, Letter to Wilson Cary Nicholas, January 26, 1802, THE PAPERS OF THOMAS JEFFERSON 433-34 (ed. Barbara B. Oberg, vol. 36, Princeton: Princeton University Press, 2009), available at http://founders.archives.gov/documents/Jefferson/01-36-02-0280, ver. 2013-09-28.23 See 1 Op. Att’y Gen. 631, 631.24 Id.

Had this vacancy first occurred during the recess of the Senate, no doubt would have arisen as to the President’s power to fill it. The doubt arises from the circumstance of it having first occurred during the session of the Senate. But the expression used by the constitution is “happen:” “all vacancies that may happen during the recess of the Senate.” The most natural sense of this term is “ to chance—to fall out—to take place by accident.” But the express seems not perfectly clear. It may mean “happen to take place:” that is, “to originate:” under which sense, the President would not have the power to fill the vacancy. It may mean, also, without violence to the sense, “happen to exist;” under which sense, the President would have the right to fill it by his temporary commission. Which of these two senses is to be preferred?25

The Wirt Opinion continues to consider the Recess Appointment in light of the “spirit, reason, and purpose” of the Constitution, ultimately determining that the second interpretation was most appropriate.26 Wirt acknowledged that while:

The President alone cannot make permanent appointment to those offices… whensoever a vacancy shall exist which the public interests require to be immediately filled, and in filing which, the advice and consent of the Senate cannot be immediately asked, because of the recess, the President shall have the power of the filling it by an appointment to continue until the Senate shall have passed upon it.27

Wirt interpreted the purpose of the Recess Appointments Clause as a way to keep offices filled because a “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.”28 In this way, Wirt brought back Hamilton’s emphasis on the public interest need for the Recess Appointment Clause as discussed in the Federalist Papers during the ratification of the Constitution.

With this understanding of the Recess Appointment Clause’s purpose, Wirt stated that the “happen to exist” interpretation fulfilled the purpose of the Constitution.29 Moreover, Wirt believed that given the need to fill a vacancy for the purpose of continuing government services, it was “perfectly immaterial when the vacancy first arose; for whether it arose during the session of the Senate, or during their recess, it equally requires to be filled.”30

Wirt also appealed to the “spirit” of the Constitution. He interpreted the purpose of the Recess Appointments Clause as a way to keep offices filled in the name of public interest:

25 Id. at 631-32. 26 Id.27 Id. (emphasis original). 28 Id. 29 Id. 30 Id. at 633.

The office may be an important one; the vacancy may paralize 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 has 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.31

With this understanding of the Recess Appointment Clause’s purpose, Wirt stated that the “happen to exist” interpretation fulfilled the purpose of the Constitution. Moreover, Wirt believed that given the need to fill a vacancy for the purpose of continuing government services, it was “perfectly immaterial when the vacancy first arose; for whether it arose during the session of the Senate, or during their recess, it equally requires to be filled.”32

Wirt’s conception of the spirit of the Constituion contrasts significantly from Randolph’s. In his opinion of the Recess Appointment Clause, Randolph appeals to the “spirit” of the Constitution favoring the Senate involvement. “The Spirit of the Constitution favors the participation of the Senate in all appointments. But as it may be necessary oftentimes to fill up vacancies, when it may be inconvenient to summon the senate a temporary commission may be granted by the President. This power then is to be considered as an exception to the general participation of the Senate. It ought too to be interpreted strictly.”33

Early Presidential Practice

I. Early Recess Appointments Broke Away From Randolph’s Interpretation

Despite the uncertainty regarding the formal interpretation of the Recess Appointments Clause throughout the early administrations, all presidents made recess appointments; some did fall under Randolph’s narrow interpretation. For example, Washington commissioned Robert Scot, the Engraver in question in the Randolph Opinion, during a session of Congress, falling within Randolph’s interpretation. Similarly, Washington issued a recess appointment to John Rutledge as Chief Justice of the Supreme Court in June of 1795 that fell within Randolph’s interpretation.34

Others however, did not. For example, in September 1793, Washington appointed Samuel Hitchcock to replaced Judge Nathaniel Chipman.35 Though the specific month of Chipman’s

31 Wirt, at 632.32 1 Op. Att’y Gen. 631 (1823) available at http://www.pointoforder.com/wp-content/uploads/2012/10/Wirt-opinion-10-22-1823.pdf33 See Edmund Randolph, Opinion on Recess Appointments (July 7, 1792), 24 THE PAPERS OF THOMAS JEFFERSON 165-67, available at http://rotunda.upress.virginia.edu/founders/TSJN-01-24-02-0176 [accessed 31 Oct 2013].34 Louis Fisher, Recess Appointments of Federal Judges, CRS Report for Congress, September 5, 2001, available at http://www.senate.gov/reference/resources/pdf/RL31112.pdf. 35 Edward A. Hartnett, Recess Appointments of Article III Judges, 26 CARDOZO L. REV. 377, 386-87. According to Hartnett, highly likely that John Hobby resigned during Congress’ session.

resignation remains unclear, the Federal Judicial Center reports that he resigned on January 1, 1793.36 The 2nd Congress was in session on January 1, 1793 until March 2, 1793, and the 3rd Congress’ first session began on December 2, 1793.37 Washington issued a recess appointment for that vacancy in September of 1793, over nine months after the resignation first came into effect.38 Washington nominated Hitchcock for a permanent appointment on December 27, 1973, and despite the longstanding vacancy, the Senate confirmed on December 20, 1973.39

II. Presidents Attempted to Originate Offices with Recess Appointments

With presidential practice developing during the first administrations, some appointments pushed the limits of presidential power – particularly in creating new positions and filling them during a recess of the Senate. For example, President John Adams proceeded to create diplomatic positions to negotiation a treaty with Sweden and then sought to recess appoint his son to the newly formed post.40

However, such attempts were faced with strong backlash from the Senate, often due to political reasons that may have motivated how individuals interpreted the Recess Appointments Clause. For example, Henry Tazewell, a senator from Virginia, wrote:

The Executive party in the Senate first explained away the term Advice41 in the Constitution as preceeding Consent in the case of Treaties—by urging that a concurrence in the nomination of a Minister to treat was a sufficient check on the President in executing the Treaty power. When they had got enough precedents to destroy as they suppose, the effect of that expression—they then set to work to justify the president in naming a Minister, and making a Treaty in the recess of Congress—by which they even deny to the Senate that Check which at first they allowed to exist. After this Conduct what is the Constitution? Any thing, or

Id. Similarly, in October 1796, Washington recess-appointed William Clarke to be U.S. Attorney for Kentucky even though vacancy unfilled for four years. See U.S. Dep’t of State, Caldenar of Miscellaneous Papers Received by the Department of State 456 (1897). This recess appointment occurred during a recess between the two session of the Fourth Congress. See “Annals of Congress, The Library of Congress, available at http://memory.loc.gov/ammem/amlaw/lwaclink.html#anchor1.36 Id. 37 “Annals of Congress,” The Library of Congress, available at http://memory.loc.gov/ammem/amlaw/lwaclink.html#anchor1.38 Id.39 Biographical Directory of Federal Judges, Federal Judicial Center, available at http://www.fjc.gov/servlet/nGetInfo?jid=1055&cid=999&ctype=na&instate=na.40 See Henry Tazewell, Letter to James Madison, March 18, 1798, THE PAPERS OF JAMES MADISON 92-98 (eds. David B. Mattern, J.C.A. Stagg, Jeanne K. Cross, and Susan Holbrook Perdue, Charlottesville: University Press of Virginia, 1991), available at http://founders.archives.gov/documents/Madison/01-17-02-0065, ver. 2013-09-28.41 Emphasis original.

nothing, as the rulers chuse [sic]. You will remember that this was a proceeding with closed Doors.42

During Adams’ administration, Hamilton similarly thought the president did not have the power to create positions, a marked change from his position during the ratification of the Constitution and Washington’s administration.

Is it not evident from the above acts, that it was the opinion of Congress, the Constitution did not authorize the President, to fill up any vacancies in the army43, which might happen during a Session of the Senate, but that an express authority for the purpose was indispensibly [sic] necessary to be vested in him by law? If such is the meaning of the Constitution with respect to actual vacancies, occuring [sic] during a Session of the Senate—another principle requires mature consideration, and a clear decision, before Officers can be appointed to the companies, intended to compose, the additional batalion [sic] of Artillerists in question—viz: Whether Offices, created, during the late session of the senate, and not then filled by appointments, by and with their advise and consent, can now be considered, as offering vacancies, happening during the said Session, to the filling of which the President is competent, independent of any act, by virtue of that part of the Constitution, which declares “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.

Politics Played Key Role in Early Recess Appointments

As presidential practice developed, politics seeped into how the presidents and major figures interpreted and viewed the president’s recess appointment power. Politics framed not only the nature of the appointments but also how people discussed the Recess Appointments Clause. The records show that players were willing to shift views based on politics.

I. Politics Starts to Influence Recess Appointments under Adams

During Adams’s presidency, the political atmosphere was markedly different than during Washington’s presidency. Adams proved to be unable to lead an administration compared to Washington; even some of his own party members were less apt to support him. For example, three of his major cabinet members retained from the Washington adminisration, Secretary of State Thomas Pickering, Secretary of War James McHenry, and Secretary of Treasury Oliver Wolcott, Jr. contined to maintain close relations from Hamilton, by then Adams’ political rival.44 This political landscape set the stage for political fights and appointments.

42 Henry Tazewell, Letter to James Madison, March 18, 1798, THE PAPERS OF JAMES MADISON 92-98 (eds. David B. Mattern, J.C.A. Stagg, Jeanne K. Cross, and Susan Holbrook Perdue, Charlottesville: University Press of Virginia, 1991), available at http://founders.archives.gov/documents/Madison/01-17-02-0065, ver. 2013-09-2843 See infra Section II.44 See Fred I. Greenstein, Presidential Difference in the Early Republic: The Highly Disparate Leadership Style of Washington, Adams, and Jefferson, 36 PRES. STUD. QUAR. 373, 379 (2006).

The above mentioned issue of the President’s power to make appointments for army officers is particularly illustrative. The issue arose during the recess of Senate when Adams wanted to promote John Hasting, a Major in the Army, to a Captain. In a letter to Alexander Hamilton, James McHenry, the Secretary of War, expressed doubt about whether an act of Congress had authorized the President to fill vacancies in the Army “that may happen during a session of the Senate”45:

Is it not evident from the above acts, that it was the opinion of Congress, the Constitution did not authorize the President, to fill up any vacancies in the army, which might happen during a Session of the Senate, but that an express authority for the purpose was indispensibly [sic] necessary to be vested in him by law? If such is the meaning of the Constitution with respect to actual vacancies, occuring [sic] during a Session of the Senate—another principle requires mature consideration, and a clear decision, before Officers can be appointed to the companies, intended to compose, the additional batalion [sic] of Artillerists in question—viz: Whether Offices, created, during the late session of the senate, and not then filled by appointments, by and with their advise and consent, can now be considered, as offering vacancies, happening during the said Session, to the filling of which the President is competent, independent of any act, by virtue of that part of the Constitution, which declares “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.46

McHenry raised two reoccurring issues regarding the scope of the Recess Appointments Clause. The first was whether Congress needed to expressly authorize through a statute the President’s ability fill vacancies in the army that arose during a recess of Congress.47 The second was the same interpretive issue as the Randolph opinion regarding whether vacancies needed to originate in the recess of Congress.48

Hamilton responded to McHenry’s concerns.49 Though he thought the term “vacancy” was relative, Hamilton did not believe that the president’s powers were without limits:

After mature reflection on the subject of your letter of the 26th. of last month; I am clearly of opinion that the President has no power to make alone the appointment of Officers to the Batalion [sic], which is to be added to the second Regiment of Artillerists and Engineers.

45 James McHenry, Letter to Alexander Hamilton, April 26, 1799, THE PAPERS OF ALEXANDER HAMILTON 69-72 (ed. Harold C. Syrett, New York University Press: 1967), available at http://founders.archives.gov/documents/Hamilton/01-23-02-0058, ver. 2013-09-2846 Id.47 Id.48 Id.49 Alexander Hamilton, Letter to James McHenry, May 7, 1799, THE PAPERS OF ALEXANDER HAMILTON 94-95 (ed. Harold C. Syrett, New York University Press: 1967), available at http://founders.archives.gov/documents/Hamilton/01-23-02-0082, ver. 2013-09-28

In my opinion Vacancy is a relative term, and presupposes that the Office has been once filled. If so, the power to fill the Vacancy is not the power to make an original appointment. The phrase “Which may have happened” serves to confirm this construction. It implies casualty—and denotes such Offices as having been once filled, have become vacant by accidental circumstances. This at least is the most familiar and obvious sense, and in a matter of this kind it could not be adviseable [sic] to exercise a doubtful authority.

It 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.50

Hamilton’s response reveals that even Hamilton believed that the president’s power was limited to the construction of the Recess Appointments Clause. Based on this interaction, it appears the McHenry subscribed to some version of Randolph’s interpretation. Similarly, Hamilton, though he did not elaborate on the specific meaning of “happen” though he states that the offices were once filled and “have become vacant by accident.” However, Hamilton’s response to McHenry departs from his longstanding interpretation of the Recess Appointments Clause seen during the ratification period and Washington’s presidency, suggesting that his changing view may have been motivated by a desire to limit Adams’ power. Hamilton, in the Federalist Papers and other writings,51 argued for a broader reading of the President’s ability to make recess appointments.

Moreover, the impending change in political party at the end of the Adams’ presidentcy set the stage for future recess appointments in Jefferson’s administration. In the wake of the election of 1800, in which the Jefferson and the Democratic Republicans won a victory, Adams was able Congress to pass the Judiciary Act of 1801, which created new circuit judges. Through the passage of this act, Adams rushed to appoint “midnight judges” before the beginning of Jefferson’s presidency. This would frame the political environment for Jefferson’s presidency.

II. Jefferson’s Recess Appointment Struggles

As Thomas Jefferson took the presidency, there was again a change in the political tide. In the wake of the controversy over Adams’ appointments on the eve of Jefferson’s presidency, the controversies that arose during Jefferson’s presidency reveal complicated politicking using recess appointments, in addition to using the President’s general appointments and removal authority for political gain.52

In the wake of repealing the Judiciary Act, complications with judicial appointments arose. For example, Adams nominated District Judge Benjamin Bourne of Rhode Island

50 Id. (emphasis original). 51 See Alexander Hamilton, Letter to George Gale, December 20, 1792, THE PAPERS OF ALEXANDER HAMILTON 342-44 (ed. Harold C. Syrett, New York University Press: 1967), available at http://founders.archives.gov/documents/Hamilton/01-13-02-0177, ver. 2013-09-28; see also The Federalist 67, New York Packet, March 11, 1788, available at http://consource.org/document/the-federalist-no-67-1788-3-11/52 See Mitchel A. Sollenberger, THE PRESIDENT SHALL NOMINATE 35 (2008).

to a circuit court position created under the Judiciary Act of 1801,53 with Senator Ray Greene being nominated and confirmed to take Bourne’s place. However, soon after the Judiciary Act was repealed and caused Bourne to lose the position, and an erroneous commission appointed Greene as circuit judge instead of district judge.54 Jefferson recess appointed David Barnes to the district judge position rather than correcting the error.55 While the reason for Jefferson’s decision is not completely clear, the decision to appoint Barnes may be related to the Federalists’ effort to interfere with Jefferson’s nominations of Samuel Smith as the Secretary of Navy and Albert Gallatin as the Secretary of Treasury.56

The constitutionality of Jefferson’s appointment of Barnes raised further questions about whether a vacancy existed and if it did, when it existed. The Federal Judicial Center records show that Bourne received his commission as circuit judge on February 20, 1801,57 with termination on July 1, 1802, due to the repealing of the Judiciary Act.58 Barnes sent a letter to Jefferson on May 18, 1801 accepting Jefferson’s recess appointment, as the first session of Congress had recessed on March 3, 1801. Given that Greene’s commission was erroneous, arguably the office was vacant from February 20, 1201 continuously until Barnes’ acceptance on May 18, 1801. However, under Randolph’s interpretation, because this vacancy “happened” or began during a session of Congress, Jefferson’s recess appointment would be unconstitutional.

III.Madison and the Gallatin Appointment

Not unlike Jefferson, Madison also faced a presidency marked by politics and a defense of the president’s power to make recess appointments. By the time of Madison’s presidency, politicking with respect to appointments was becoming the norm. Most notably, controversy over Albert Gallatin arose again during Madison’s presidency. One of Madison’s most controversial

53 See Kathryn Turner, The Midnight Judges, 109 U. PA. L. REV. 494, 515 (1961). 54 See Thomas Jefferson, Letter to Theodore Foster, May 9, 1801, THE PAPERS OF THOMAS JEFFERSON 66-67 (ed. Barbara B. Oberg, vol. 34, Princeton: Princeton University Press, 2009), available at http://founders.archives.gov/documents/Jefferson/01-34-02-0049; see also Hartnett, supra note 35, at 293. 55 Id. 56 See Commentary on Jefferson’s letter. Id. 57 There was some question about whether there was a vacancy when Green first received his appointment. Levi Lincoln, the Acting Secretary of State at the time, expressed skepticism about the appointment process:

It is probable that Bourne was the judge of the district court when the appointment was made–of course there was no vacancy. His letter of acceptance is dated the 23d of March [of 1801].

Levi Lincoln, Letter to Thomas Jefferson, April 8, 1801, THE PAPERS OF THOMAS JEFFERSON 553 (ed. Barbara B. Oberg, vol. 33, Princeton: Princeton University Press, 2009), available at http://founders.archives.gov/documents/Jefferson/01-33-02-0481. From Lincoln’s letter, it is unclear whether he is referring to Bourne’s letter or Greene’s letter. However, given the date of Bourne’s commission as circuit judge, it is likely Greene’s letter. 58 Federal Judicial Center, available at http://www.fjc.gov/servlet/nGetInfo?jid=219&cid=999&ctype=na&instate=na.

recess appointments was of Secretary of Treasury, Albert Gallatin, as the Minister of Russia in May of 1813.59 The Senate rejected Madison’s nomination after learning Gallatin was still serving as the Secretary of Treasury.60

In a letter to Gallatin, Madison conveyed the nature of the Senate’s rejection of the nomination, conveying the “painfulness of [his] own in particular.”61 Moreover, Madison relayed to Gallatin the political and strategic nature of the Senate vote:

It was apprehended by some of the best disposed and best informed of the Senate that a renomination would not secure the object. As it had become certain that the open and secret adversaries together amounted to a formidable number who would be doubly gratified by a double triumph it was suspected that after succeeding in getting the Treasury vacated it would be a prerequisite to a confirmation of the other appointment that the vacancy should be actually filled in order to prevent its being kept open for your return which might be, looked for within the term of six months and that with this view a resolution might be obtained declaring the inconsistency of a protracted vacancy with the public service and the incompatibility of the two offices held by the Secretary of the Navy, to be used in like manner with the first resolution as a motive or pretext for embarassing [sic] and if possible getting rid of the renomination. It is certain that some who had intimated an intended change of their votes in case the Treasury Department should be vacated had in view that the vacancy should be forthwith filled and even that a nomination to it should go in with the renomination. Whether a majority would have gone such lengths is uncertain, but strong symptoms existed of a temper in the body capable of going very great lengths. And apart from all other considerations it would have been impossible, even if it had been intended to make and fill a vacancy in the Treasury Department, that the consent of the Senate in the other case could be purchased by a pledge to that effect. Besides the degradation of the executive it would have introduced a species of barter of the most fatal tendency. I have given you this summary, that you may understand the true character of a proceeding which has given us so much concern.”62

The tone of Madison, as President, discussing the appointments process is quite different from his discussion as a member of Congress, representing the state of Virginia during Washington’s administration. As seen here in one of Madison’s essays of the Pacificus-Helvidius debates (also reflecting the development of factions) of a larger discussion of legislative power to declare war,

59 Salmon, supra note Error! Bookmark not defined., at 44. 60 See Salmon, supra note Error! Bookmark not defined., at 44. 61 James Madison, Letter to Albert Gallatin, August 2, 1813, THE PAPERS OF JAMES MADISON 491-94 (eds. David B. Mattern, J.C.A. Stagg, Jeanne K. Cross, and Susan Holbrook Perdue, vol. 6, Charlottesville: University Press of Virginia, 1991), available at http://founders.archives.gov/documents/Madison/03-06-02-0464, ver. 2013-09-28 (emphasis original).62 Id. (emphasis original).

Madison initially felt that the executive branch could assume some legislative power but such power should be limited to shared concurrent power with the legislature:

Legislative power may be concurrently vested in different legislative bodies. Executive powers may be concurrently vested in different executive magistrates. In legislative acts the executive may have a participation, as in the qualified negative on the laws. In executive acts, the legislature, or at least a branch of it, may participate, as in the appointment to offices. Arrangements of this sort are familiar in theory, as well as in practice. But an independent exercise of an executive act, by the legislature alone, or of a legislative act by the executive alone, one or other of which must happen in every case where the same act is exerciseable by each, and the latter of which would happen in the case urged by the writer, is contrary to one of the first and best maxims of a well organized government, and ought never to be founded in a forced construction, much less in opposition to a fair one. Instances, it is true, may be discovered among ourselves where this maxim, has not been faithfully pursued; but being generally acknowledged to be errors, they confirm, rather than impeach the truth and value of the maxim.63

This notion of shared powers stemmed from Madison’s position during the ratification of the Constitution. In a letter to Jefferson conveying the events of the Constitutional Convention, Madison, while supporting the new federal Constitution, envisioned ethe appointments system to be based on shared power between the branches:

The questions concerning the degree of power turned chiefly on the appointment to offices, and the controul on the Legislature. An absolute appointment to all offices—to some offices—to no offices, formed the scale of opinions on the first point. On the second, some contended for an absolute negative, as the only possible mean of reducing to practice, the theory of a free Government which forbids a mixture of the Legislative & Executive powers. Others would be content with a revisionary power to be overruled by three fourths of both Houses. It was warmly urged that the judiciary department should be associated in the revision. The idea of some was that a separate revision should be given to the two departments—that if either objected two thirds; if both three fourths, should be necessary to overrule.64

Throughout the early presidencies, politics proved to be a major factor in influencing the interpretation and practice of the Recess Appointment Clause. Some views, such as Hamilton’s, shifted in response to a change in the presidency and a desire to maintain influence within the

63 James Madison, “Helvidius” Number 2, THE PAPERS OF JAMES MADISON 80-87 (ed. Thomas A. Mason, Robert A. Rutland, and Jeanne K. Sisson, vol. 15, Charlottesville: University Press of Virginia 1985), available at http://founders.archives.gov/documents/Madison/01-15-02-0061, ver. 2013-09-28.64 See James Madison, Letter to Thomas Jefferson (October 14, November 1, 1787), available at http://rotunda.upress.virginia.edu/founders/RNCN-02-08-02-0001-0067 [accessed 19 Sept 2013].

executive branch. Other views, such as Madison’s, changed as a result of different positions and responsibilities in the government; for Madison, his position on the recess appointment power shifted as he sought to exert power as the President compared to his position while a Congressman.

Conclusion

Early presidential practice and the debate surrounding the Recess Appointments Clause during the ratification of the Constitution and the first presidential administration reveal various arguments and positions, even changing positions, regarding the interpretation, scope, and purpose of presidential recess appointment power. During Washington’s presidency, Randolph early on sought to establish a narrow interpretation of the Recess Appointments Clause; however, subsequent presidential practice demonstrates that presidents often disregarded Randolph’s opinion. Nevertheless, interpretation of the president’s recess appointment power remained unsettled, despite a trend of politics influencing interpretation of the Recess Appointments Clause, both from presidents and major figures in the early governments. It was not until Attorney General Wirt supplied an authoritative opinion rejecting Randolph’s view during Monroe’s administration. A deeper look into the historical record shows that the early recess appointments cannot be considered in isolation, as interpretations of presidential recess power often changed along with the political waves and historical circumstances, resulting in dynamic discussions during this time period.