The Birth of the Recess Appointment

Article Two of the U.S. Constitution includes this clause, proposed by Richard Dobbs Spaight of North Carolina:

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.

This language was modeled after a clause in the North Carolina constitution. It wasn’t part of the first draft of the new federal document, but the men of the Constitutional Convention—many of whom probably expected to be Senators—knew they wouldn’t want to spend all their time at the capital just in case an important position should become vacant.

No one dissented on this clause, and therefore there was no formal debate about its meaning. The Constitution doesn’t define the parameters of the Senate’s “recess” or “session” except to say that it can’t “adjourn for more than three days” without the House of Representatives’ consent or meet somewhere away from the House. The founders at the Constitutional Convention shared a basic understanding of how legislatures worked, so they didn’t think it worthwhile to spell that all out.

The 67th installment of The Federalist Papers, written by Alexander Hamilton, explained that clause this way:

The ordinary power of appointment is confined 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 authorize the President, singly, to make temporary appointments “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”

Hamilton’s main goal in that essay, context makes clear, was to assure readers that the President could not appoint Senators, as some critics of the Constitution had evidently claimed. The actual workings of the recess appointment were only a minor consideration for him.

The first President to make a recess appointment was the first President, George Washington. He named officials in the very first break of the first Congress. Presidents John Adams, Thomas Jefferson, and James Madison (also kind of an expert on the Constitution) also used this power. Jefferson, in fact, delayed his nomination of Albert Gallatin as Secretary of the Treasury so he could make a recess appointment; he didn’t submit Gallatin’s name to the Senate until almost eight months later in January 1802, when there was a Republican majority.

In fact, most of those early recess appointments were later confirmed by the Senate, or at least not rejected. But there was a notable exception. In June 1795 Washington named John Rutledge of South Carolina to be Chief Justice while the Senate was in recess. Less than three weeks later, Rutledge made a speech against the Jay Treaty negotiated by his predecessor, saying that he hoped Washington would die rather than sign it. This reduced his popularity within the administration.

Nevertheless, Rutledge presided over some court sessions that fall, and the President formalized his nomination in December 1795. By then, however, people were speaking openly about the new Chief Justice’s alcoholism, depressions, and failing mind. The Senate rejected the nomination, keeping its debate off the record. Rutledge went home to Charleston and attempted suicide. That didn’t work out, either.

Two days later, Rutledge wrote to Washington, resigning his commission as Chief Justice. Under the literal language of the Constitution, that commission was due to expire at the end of the Senate’s current session, or about five months later. Because Rutledge resigned, however, the country didn’t test the question of whether his commission should have ended as soon as the Senate had considered and rejected his appointment.

TOMORROW: Justice Joseph Story’s interpretation.