Attorney General Wirt’s 1823 Opinion Does Not Support Modern Recess Appointment Practices

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.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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