Ask the Scholar

{
    "localId": "135839282",
    "label": "JGR/Recess Appointments (2 of 11)",
    "core": "doc",
    "dtoType": "document",
    "citationUrl": "https://catalog.archives.gov/id/135839282"
}

{
    "id": "135839282",
    "sourceUrl": "https://catalog.archives.gov/id/135839282",
    "contentType": "document",
    "title": "JGR/Recess Appointments (2 of 11)",
    "citationUrl": "https://catalog.archives.gov/id/135839282",
    "identifierLocal": "485",
    "collections": [
        "Records of the Office of Counsel to the President (Reagan Administration)",
        "John Roberts' Subject Files"
    ],
    "iiifBase": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/reagan/6908381/40-485-6908381-047-002-2017.pdf",
    "thumbnailUrl": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/reagan/6908381/40-485-6908381-047-002-2017.pdf",
    "largeImageUrl": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/reagan/6908381/40-485-6908381-047-002-2017.pdf",
    "imageCount": 1,
    "hasImages": true,
    "source": "import",
    "hasTranscription": false
}

{
    "url": "https://catalog.archives.gov/id/135839282",
    "naId": 135839282,
    "coverageEndDate": {
        "logicalDate": "1986-12-31",
        "year": 1986
    },
    "coverageStartDate": {
        "logicalDate": "1982-01-01",
        "year": 1982
    },
    "levelOfDescription": "fileUnit",
    "recordType": "description",
    "ocrSource": "nara-archive"
}

{
    "seq": 1,
    "pageIndex": 0,
    "type": "document",
    "url": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/reagan/6908381/40-485-6908381-047-002-2017.pdf",
    "mediaId": "d2f3d4e75c071d00",
    "ocrText": "Ronald Reagan Presidential Library\nDigital Library Collections\nThis is a PDF of a folder from our textual collections.\nCollection: Roberts, John G.: Files\nFolder Title: JGR/Recess Appointments (2)\nBox: 47\nTo see more digitized collections visit:\nhttps://reaganlibrary.gov/archives/digital-library\nTo see all Ronald Reagan Presidential Library inventories visit:\nhttps://reaganlibrary.gov/document-collection\nContact a reference archivist at: [email protected]\nCitation Guidelines: https://reaganlibrary.gov/citing\nNational Archives Catalogue: https://catalog.archives.gov/\n115 Box 47 - JGR/Recess Appointments (2) - Roberts, John G.:\nFiles SERIES I: Subject File\nU.S. Department 01 Justice\nOffice of Legal Counsel\nOffice of the\nWashington, D.C. 20530\nDeputy Assistant Attorney General\nSEP 13 1983\nMEMORANDUM FOR RICHARD A. HAUSER\nDeputy Counsel to the President\nRe: Recess Appointments to the Board of Directors\nof the Corporation for Public Broadcasting\nThis responds to your request for our opinion on whether\nthe President is authorized to fill a vacancy in the Board of\nDirectors of the Corporation for Public Broadcasting (Corporation)\nby means of a recess appointment. U.S. Const. art II, § 2,\ncl. 3. 1/ More specifically, we have been asked whether there\nis any objection to the appointment of Mr. William Lee Hanley, Jr.\nto a vacancy which occurred upon the expiration last fall of\nthe term of Mrs. Gillian Martin Sorensen. Mrs. Sorensen has\ncontinued to serve on the Board as a holdover member since the\nexpiration of her term. After a review of the Corporation's\nstatute and legislative history, relevant case law and prior\nopinions of the Attorney General and this Office, we have\nconcluded that there is no legal obstacle to such a recess\nappointment.\nI. Recess Appointments\nThe President's power to make recess appointments is\na corollary of his power to appoint, with the advice and\nconsent of the Senate, officers of the United States.\nU.S. Const. art. II, § 2, cl. 2. His power to fill vacancies\nis thus coextensive with his power to fill them originally.\nMcCalpin V. Dana, No. 82-542 (D. D.C. October 5, 1982),\nappeal docketed, No. 82-2318 (D.C. Cir. November 3, 1982),\nslip op. at 4-5. Unless there is a clearly expressed legis-\nThe Recess Appointments Clause provides:\nThe President shall have Power to fill up\nall Vacancies that may happen during the\nRecess of the Senate, by granting\nCommissions which shall expire at the End\nof their next Session.\nlative intent to the contrary, therefore, id. at 10, positions\nheld by officers of the government may be filled by the\nPresident under the Recess Appointments Clause. 2/ The McCalpin\ncourt quoted Staebler V. Carter, 464 F. Supp. 585, 592 (D.D.C.\n1979), in which Judge Harold Green, considering recess appointments\nto the Federal Election Commission, said:\nThe Court finds it difficult to believe\nthat, had the Congress intended to take the\nsignificant step of attempting to curtail the\nPresident's constitutional recess appointment\npower, it would not have considered the matter\nwith more deliberation or failed to declare\nits purpose with greater directness and pre-\ncision.\nBefore reading such an unusual limit into a statute, we\nbelieve that the courts would require a clear and explicit\nstatement by Congress that it intended to accomplish such an\nobjective.\nHere, we are aware of nothing in the Corporation's\nenabling act or its legislative history that evidences a\nCongressional desire to restrict the President's appointment\npower. Rather, there is affirmative evidence that attempts\nto limit the President's authority over appointments were\nrejected when the Corporation was set up in 1967. Although\nthe original legislation provided for a fifteen member Board\nappointed by the President, the suggestion was made during\nhearings that more diversity would be insured if. six of the\nfifteen were elected by nine appointed members. S. Rep. No.\n222, 90th Cong., 1st Sess. 13 (1967). Although the Senate\nCommittee adopted the suggestion, it was rejected by the\nHouse and the original language was retained. H.R. Rep. No.\n572, 90th Cong., 1st Sess. 15, 27 (1967). Thus, an attempt\nto weaken the President's appointment power was rejected.\nIn 1981, the statute was amended to revise the Board's\nmakeup. The number of Board members was reduced' to ten, and two\nof the ten positions were reserved for one representative each\nfrom among the public television stations and the public radio\n2/ The President's acknowledged power to appoint whomever he\nwants as a member \"is inconsistent with a statutory construction\nthat would restrict the President's power under the Recess\nAppointments Clause.\" McCalpin, supra, slip op., at 10.\n- 2 -\nstations. 47 U.S.C. § 396 (c) (3) (Supp. V 1981). 3/ The\nprovision permitting members to holdover until their successors\nwere qualified, 47 U.S.C. § 396 (c) (4) (1976), was deleted.\nSee 47 U.S.C. § 396(c) (5) (Supp. V 1981). Finally, the\nlanguage governing vacancies was changed. Rather than being\nfilled \"in the manner in which the original appointments were\nmade,' 47 U.S.C. § 396(c) (5) (1976), they are now to be\nfilled \"in the manner consistent with this chapter.' 47\nU.S.C. § 396(c)(6) (Supp. V 1981). We have not found any\nlegislative history discussing these last two changes.\n3/ This provision provides:\n(3) Of the members of the Board appointed by\nthe President under paragraph (1), one member\nshall be selected from among individuals who\nrepresent the licensees and permittees of\npublic television stations, and one member\nshall be selected from among individuals who\nrepresent the licensees and permittees of\npublic radio stations.\n\"[T] he President has full discretion in selecting the\ntelevision and radio representatives. \" H.R. Rep. No.\n97-208, 97th Cong., 1st Sess. 891 (1981).\nA provision which was proposed but rejected at that\ntime would have permitted public radio and television stations\nto submit a list of qualified individuals to the Board, which\nwould then submit the list' to the President within 45 days.\nOne purpose was \"to provide for the expeditious appointment\nof individuals to fill Board vacancies. Too often in the\npast, the President has neglected to fill openings on the\nBoard -- to the detriment of the Board's ability to carry out\nits work.\" H.R. Rep. No. 97-82, 97th Cong., 1st Sess. 19\n(1981). See also Public Telecommunications Act of 1981:\nHearings on S. 720 Before the Subcomm. on Communications of\nthe Senate Comm. on Commerce, Science and Transportation, 97th\nCong., 1st Sess. 23 (1981). Although the proposal was not\nadopted, the provision does reflect a concern that the President\nfill vacancies promptly, and perhaps a recognition of previous\nshortcomings in this regard. Because many vacancies are\ncreated by death or resignation, elimination of the ability\nto make recess appointments would be somewhat inconsistent\nwith a desire to have vacancies filled expeditiously.\n- 3 -\nThe effect, if any, of the language change regarding\nthe filling of vacancies would appear to be in the direction\nof more, not less, Presidential authority. The court in\nStaebler, supra, declined to read the requirement that vacancies\nbe filled in the same manner as the original appointment as\na limit on the President's power to make recess appointments.\n464 F. Supp. at 588-591. See also McCalpin, supra, slip op.\nat 19-20. The more ambiguous language now covering vacancies\nin the Corporation's Board permits a similar interpretation,\none which is consistent with the Constitution's demands\nand thereby avoids raising doubts about the constitutionality\nof a statutory scheme in which individuals are given\nsubstantial authority over a major federal program. McCalpin,\nsupra, at 16.\nBecause we do not believe that Congress intended to\nrestrict the President's power to make recess appointments,\nthe central question for us is whether the members of the\nBoard of Directors are \"officers of the United States.\"\nThe ten members of the Board of Directors of the\nCorporation are appointed by the President, with the advice\nand consent of the Senate. 47 U.S.C. § 396 (c) (1) (Supp. V\n1981). We believe that this unrestricted power of appointment\nby the President is based on the Appointments Clause and that\nthe Board members are \"officers\" in the constitutional sense.\nThey exercise \"significant authority pursuant to the laws of\nthe United States\nincluding receipt and expenditure\nof appropriated funds. Buckley V. Valeo, 424 U.S. 1, 126\n(1976). That Congress recites that an organization is \"non-\ngovernmental\" or \"private\" does not change this analysis. 4/\n4/ Letter to Mr. Richard Garon from Robert B. Shanks, Deputy\nAssistant Attorney General, Office of Legal Counsel, June 9,\n1983 (National Endowment for Democracy).\n- 4 -\nThe Supreme Court's test is whether an individual exercises\nsignificant statutory authority; it is clear that the directors\nof the Corporation do exercise such significant statutory\nauthority. Among other things, the Corporation's authorizing\nstatute permits the Corporation to make contracts, fund\ngrants, underwrite public television and radio stations, establish\nand maintain a national library and conduct training programs.\n47 U.S.C. § 396 (g) (2) (Supp. V 1981). 5/\n5/ We are aware that some have argued that the board members\nare not officers, and that the recess appointments power\nis therefore not available. Memorandum for Paul A. Mutino,\nGeneral Counsel, Corporation for Public Broadcasting from\nJames L. McHugh, Jr., Steptoe and Johnson, January 19, 1981,\nat 2. \"Thus, the sole source of Presidential power to appoint\nto the CPB Board is the statute itself, which does not provide\nfor recess appointments. II Id. This Office stated, in a\nshort opinion in 1973, though, that while the directors did\nnot appear to be officers, we still believed that the President\ncould make recess appointments to the Corporation. Memorandum\nfor the Hon. John W. Dean, III, Counsel to the President from\nRoger C. Crampton, Assistant Attorney General, Office of\nLegal Counsel, January 3, 1973.\nOur memorandum was written prior to the Supreme Court's\ndecision in Buckley V. Valeo, 424 U.S. 1 (1976) and does not\ncontain any analysis of why the directors are not officers in\nthe constitutional sense. We must depart from its conclusion\nthat the directors are not officers, based on the intervening\nBuckley decision and our present understanding of the Corpor-\nation's functions. Because of the different premise from\nwhich we now begin our analysis, it is unnecessary for us to\ndiscuss the reasoning underlying the conclusion of our 1973\nmemorandum.\n- 5 -\nThat the Board members \"cannot 'be deemed officers\nor employees ... by reason of such membership does\nnot preclude LSC directors from being considered 'officers of\nthe United States' by reason of the Constitution.\" McCalpin,\nsupra, slip op. at 11-12. The court did not read the\nprovision, nearly identical to that found in the Corporation's,\n47 U.S.C. $396 (d) (2), out of the statute. Rather, it viewed\nit as defining\nthe entitlements, obligations, and liabilities\nof [members] under various federal statutes and\nregulations\n....\n[D]efendants correctly contend\nthat the phrase \"employee of the United States\"\nhas no constitutional significance. It is\nimprobable that Congress intended for one segment\nof a statutory clause to be defined in its\nconstitutional sense while the remaining segment\nwas to have only a statutory meaning. By using\nboth the terms \"officers\" and \"employees,\" it is\nlikely that Congress was demonstrating its concern\nthat the [statutory] rights and duties of officers\nor employees of the United States would not attach\nto [members].\nId. at 12-13. The court went on to note that the Legal Services\nCorporation's status as a non-governmental corporation did not\npreclude its directors from being officers in the constitutional\nsense. Id. That Congress wishes to insulate such members\nfrom political influence, which it has done by restricting\nthe President's removal power, id. at 16, 7/ is \"a check on the\n6/ While. the 1981 amendment added the word \"officers\" to 47\nU.S.C. § 396 (d) (2). See n.4 and text. The addition of the\nword \"officer\" makes the language even more similar to that\ndiscussed in McCalpin.\n7/ See also Memorandum for Fred F. Fielding, Counsel to the\nPresident, from Larry L. Simms, Acting Assistant Attorney\nGeneral, Office of Legal Counsel, February 8, 1981 (removal\nof recess appointments to the Corporation).\n- 6 -\npolitical influence of the Executive Branch that has been\nfrequently utilized,\" but does not influence whether someone\nis an officer. Id. 8/\nThus, we believe that members of the Corporation's\nBoard of Directors are \"officers of the United States\" whose\npositions the President may fill using his recess appointments\npower.\nII. Holdover Provision\nWe understand that the President gave the recess\nappointment to Mr. Hanley in order to fill the vacancy\ncreated by the expiration of the term of Mrs. Gillian Martin\nSorensen. Mrs. Sorensen apparently claimed the right to serve\nunder the holdover provision of D.C. Code $29-519 (c), which\nhas been made applicable to the Corporation by 47 U.S.C. §\n396 (1), to the extent consistent with that section. 9/ It\nhas been firmly established that holdover service comes to an\nend when the President makes a. recess appointment to the\nposition in which an incumbent holds over. Staebler, supra;\nMcCalpin, supra. Thus, because the President had the\nauthority to give a recess appontment to Mr. Hanley, as we\nhave shown above, the President's recess appointment terminated\nany right Mrs. Sorensen previously might have had to continue\nto serve as a director of the Corporation.\nThe historical record is replete with examples of\nrecess appointments to so-called independent agencies. See\nStaebler V. Carter, 464 F. Supp. 585, 587 (\"at least 116\"\nexamples in recent decades). President Carter made\nrecess appointments to the Corporation's Board in January,\n1981. Memorandum for Fred Fielding, Counsel to the\nPresident from Larry L. Simms, Acting Assistant Attorney\nGeneral, Office of Legal Counsel, February 8, 1981. Other\nexamples include recess appointments to the Legal Services\nCorporation, see McCalpin, supra, and to the Communications\nSatellite Corporation. 42 Op. Att'y Gen. 165, 165 n.2 (1962).\n9 We see no inconsistency between 47 U.S.C. § 396 and\nD.C. Code § 29-519 (c). 49 U.S.C. § 396 (c) (4) originally\ncontained a holdover provision. That provision was\nomitted in a 1981 revision of § 396. It is not clear\nwhether the omission might have been due to a determination\nthat the D.C. Code section rendered the statutory provision\nunnecessary. There is some evidence in the legislative history\nwith regard to another provision, see n.3, supra, that\nCongress was concerned about the speed with which the\nPresident was filling vacancies. It may be that the deletion\nwas intended to encourage the President to fill vacancies\neven more quickly by eliminating the grace period available\nwith a holdover provision.\n- 7 -\nIV. Conclusion\nWe believe that the President has the authority to make\nrecess appointments to the Board of Directors of the\nCorporation for Public Broadcasting. We further conclude\nthat the recess appointment of Mr. William Lee Hanley, Jr. was\nlegally permissible, and that Mr. Hanley therefore replaced\nMrs. Gillian Martin Sorensen, whose holdover status was\nterminated thereby.\nPlease let us know if we can be of further assistance.\nRalph W. Tarr\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n- 8 -\nRETURN TO:\nEXECUTIVE CLERK\nROOM -\nOPINION OF THE ATTORNEY GENERAL OF THE\nUNITED STATES\nRECESS APPOINTMENTS\nThe cies President which is authorized to make recess appointments to fill vacan-\noccurred while the Senate was in session.\nThe temporary President is authorized to make recess appointments\nThe as reconvening the \"next of the Senate on August 8, 1960, is not August to be 8, 1960.\nadjournment of the Senate from July 3 to during the\nsection 2, Session\" of the Senate within the meaning of regarded\nsecond clause 3 of the Constitution, but as the continuation Article II,\nappointed session of the 86th Congress. The commissions of the of the\nend of that during this adjournment therefore will continue officers\nsine die session of the Senate which follows the final adjournment until the\nThe nation adjournment of of the Senate on July 3, 1960, constituted\nof the second session of the 86th Congress.\n56, so that the session of the Senate\" within the meaning of the \"termi-\nate on persons whose nominations were pending before 5 U.S.C.\nperiod of that day and who receive recess appointments the Sen-\noffices, adjournment are entitled to the salaries attached during the\nthis right provided that the other conditions of 5 U.S.C. 56 to their\nment of will not be terminated by any temporary or final are met; adjourn- and\nthe second session of the 86th Congress.\nThe mit terminal to the proviso of 5 U.S.C. 56 may require that the\nAugust Senate not later than forty days after it President sub-\ncess of the 8, 1960, the nominations of those officers who, reconvenes on\nisted Senate, received appointments to fill vacancies during which the ex- re-\nwhile the Senate was in session.\nTHE PRESIDENT.\nJULY 14, 1960.\nMy oral DEAR MR. PRESIDENT: I have the honor to comply with\nare lating to your power under the Constitution to make what re-\nyour request for my opinion on several questions\ncommonly designated as recess appointments.\nResolution 112, 86th Cong., 2d sess., which reads\nOn July 3, 1960, the Senate adopted Senate Concurrent\no'clock July 3, 1960, the Senate shall stand adjourned on Sunday,\n\"That when the two Houses shall adjourn\nRepresentatives Vol. shall stand adjourned until 12 o'clock noon of\nnoon on Monday, August 8, 1960, and the House until 12\n41, Op. No. 80.\n562021-60-1\n(1)\n2\nJuly 5, 1960), p. 14690.)\non Monday, August 15, 1960.\" (106 Cong. Rec. (Daily Ed.,\nproviding: At the same time, the Senate agreed to a resolution\n\"* * * That notwithstanding the adjournment of the Sen-\nof the provisions of rule XXXVIII of the Standing Rules\nand ate under Senate Concurrent Resolution 112, as amended,\nand the Senate, the status quo of nominations now pending\nadjournment shall be preserved.\"\nnot finally acted upon at the time of taking such\nThe questions now presented are, first, whether are\nsection authorized to make appointments pursuant to Article you II,\n2, clause 3 of the Constitution, during the adjourn-\nticular ment of the Senate from July 3 to August 8, 1960, in\nthe whether you may appoint to vacancies, existing par- at\ntime when the Senate was in session, those persons whom\nyou and had nominated and whose nominations were pending\nnations or submit to adjourned; such at not some to appointments of finally the later those second, Senate-when time-for acted persons when will upon the expire; who its it commissions at advice reconvenes had the third, received and time whether consent, on granted when August you the the pursuant 8, should Senate nomi- 1960,\nduring the adjournment of the Senate, especially appointments of those\nat whose the nominations were pending and not finally acted\nwhether time of the adjournment on July 3, 1960; and, finally, upon\nments 56. may be paid pursuant to the provisions of 5 U.S.C.\nand how long the persons receiving such appoint-\nthat For the reasons set forth in detail, I conclude, first,\nadjournment of the Senate, and that this power extends\nyou have the power to make appointments during this\nvacancies which existed at the time the Senate in to\nnot sion and to persons whose nominations were pending was ses- but\n1960; second, that the commissions of the persons so 3,\nfinally acted upon when the Senate adjourned on July\npointed will expire at the end of the session of the Senate ap-\npart:\n1 Rule \"6. XXXVIII * if of the Standing Rules of the Senate provides in\nof thirty taking days, such all nominations pending and not finally acted a recess for more than\nthe Senate shall adjourn or take pertinent\nthe President, adjournment or recess shall be returned by upon the at the time\nmade to the Senate and by shall the President.\" not again be considered unless they shall Secretary again be to\n3\nfollowing the adjournment sine die of the second session of\nthe 86th Congress, presumably, the end of the first session\nof the 87th Congress; third, that it would be advisable to\nsubmit to the Senate, when it reconvenes at the end of the\nadjournment, nominations for all persons who received ap-\npointments between July 3 and August 8, 1960; and, finally,\nthat, provided compliance is made with the provisions of\n5 U.S.C. 56, any such appointee can be paid out of the\nTreasury for the duration of his constitutional term or until\nthe Senate has voted not to confirm his nomination.\nI.\nArticle II, section 2, clause 3 of the Constitution provides:\n\"The President shall have Power to fill up all Vacancies\nthat may happen during the Recess of the Senate, by grant-\nSession\ning Commissions which shall expire at the End of their next\nIt has been settled by a long and unanimous line of opin-\nions of the Attorneys General concurred in by the courts that\nthe President's power to make such appointments is not\nlimited to those which \"happen to occur\" during the recess\nof the Senate but that it extends to those which \"happen to\nexist\" during that period ; hence, that the President has the\nconstitutional power to fill vacancies regardless of the time\nwhen they first arose. 1 Op. 631 (1823) ; 2 Op. 525 (1832)\n3 Op. 673 (1841) ; 7 Op. 186 (1855) ; 10 Op. 356 (1862) 12 ;\n207 Op. 32 (1866) ; 12 Op. 455 (1868) ; 14 Op. 562 (1875) ; 15 Op. ;\n(1877) ; 16 Op. 522 (1880) ; 16 Op. 538 (1880) ; 17 Op. 530\n(1883) ; 18 Op. 28 (1884) ; 18 Op. 29 (1884) ; 19 Op. 261\n(1889) ; 26 Op. 234 (1907) ; 30 Op. 314 (1914) ; 33 Op. 20, 22-\ncuit 1880), and the opinion of Mr. Justice Woods, sitting as Cir-\n23 (1921) ; see also In Re Farrow, 3 Fed. 112 (C.C.N.D. Ga.,\nTenn., 1886).\nJustice, in In Re Yancey, 28 Fed. 445, 450 (C.C.W.D.\nThe Congress, too, recognizes the President's power to make\nappointments during a recess of the Senate to fill a\nU.S.C. 56, which originally prohibited the payment of\nwhich existed while the Senate was in session. R.S. vacancy 1761, 5\npropriated funds as salary to a person who received a recess ap-\na See, e.g., 52 Cong. Rec. 1369-1370 (1915) ; 67 Cong. Rec. 262-264 (1925).\n4\nappointment if the vacancy existed while the Senate was in\nsession implicitly assumed that the power existed, but sought\nto render it ineffective by prohibiting the payment of the\nsalary to the person SO appointed.3 In 1940, however, the\nCongress amended R.S. 1761, 5 U.S.C. 56 (act of July 11,\n1940, C. 580, 54 Stat. 751), and permitted the payment of\nsalaries to certain classes of recess appointees even where the\nvacancies occurred while the Senate was in session.⁴ In view\nof this congressional acquiescence, you have, without any\ndoubt, the constitutional power to make recess appointments\nto fill any vacancies which existed while the Senate was in\ndisession.\nNext, I reach the question of whether the adjournment\nof the Senate, pursuant to Senate Concurrent Resolution 112\nof July 3, 1960, from that day to August 8, 1960, is a \"re-\ncess of the Senate\" within the meaning of Article II, sec-\ntion 2, clause 3 of the Constitution. In other words, does\nthe word \"recess\" relate only to a formal termination of a\nsession of the Senate, or does it refer as well to a temporary\nadjournment of the Senate, protracted enough to prevent\nthat body from performing its functions of advising and\nconsenting to executive nominations? It is my opinion,\nwhich finds its support in executive as well as in legislative\nand judicial authority, that the latter interpretation is the\ncorrect one.\nIn 1921, the Attorney General ruled that the President has\nthe power to make recess appointments during an adjourn-\nment of the Senate for four weeks. 33 Op. 20 (1921). In his\nopinion, the test for the determination of whether an ad-\njournment constitutes a recess in the constitutional sense is\nnot the technical nature of the adjournment resolution, i.e.,\nwhether it is to a day certain (temporary) or sine die (ter-\nminating the session), but its practical effect: viz., whether\nor not the Senate is capable of exercising its constitutional\nfunction of advising and consenting to executive nomina-\n3 Cf. the memorandum submitted by Senator Butler on March 16, 1925, 67\nCong. Rec. 263, 264 (1925).\n& For an analysis of 5 U.S.C. 56, see II, infra. The legislative history of\nthe 1940 amendment of 5 U.S.C. 56 does not contain any suggestion that the\nPresident lacks the power under the Constitution to make recess appointments\nwhen the vacancies existed while the Senate was in session. Cf. S. Rept. 1079,\n76th Cong., 1st sess., and H. Rept. 2646, 76th Cong., 3d sess.\n5\ntions. Relying on the classic expositions of Attorneys Gen-\neral Wirt and Stanbery in 1 Op. 631 (1823) and 12 Op.\n32 (1866), the Attorney General explained the purposes the\nPresident's recess appointment power is designed to serve:\nviz., to enable the President, at a time when the advice and\nconsent of the Senate cannot be obtained immediately, to fill\nthose vacancies which, in the public interest, may not be left\nopen for any protracted period. He pointed out that the\nexistence of a vacancy is no less adverse to the public interest\nbecause it occurs after a temporary rather than after a final\nadjournment of a session of the Congress, and \"could not\nbring himself to believe that the framers of the Constitution\never intended\" that the President's essential power to make\nrecess appointments could be nullified because the Senate\nchose to adjourn to a specified day, rather than sine die (33\nOp. 20, 23 (1921))\nThe opinion, however, relied not only on earlier opinions\nof the Attorneys General; it was amply supported by judi-\ncial and legislative authority. In Gould V. United States,\n19 C. Cls. 593, 595 (1884), the Court of Claims had held\nthat the President possessed the power to make recess ap-\npointments during a temporary adjournment of the Senate\nlasting from July 20 to November 21, 1867. The Attorney\nGeneral, furthermore, relied heavily on a \"most significant\"\nreport of the Senate Committee on the Judiciary, dated\nMarch 2, 1905 (S. Rept. 4389, 58th Cong., 3d sess.; 39 Cong.\nRec. 3823-3824 (1905) This report, construing the very\nconstitutional clause here involved, interprets the term \"re-\ncess\" as \"the period of time when the Senate is not sitting in\nregular or extraordinary session as a branch of the Congress,\nor in extraordinary session for the discharge of executive\nfunctions; when its members owe no duty of attendance;\nwhen its Chamber is empty; when, because of its absence, it\ncannot receive communications from the President or partic-\nipate as a body in making appointments.\"\nThe opinion therefore concluded that the adjournment of\nthe Congress from August 24 to September 21, 1921, a\nperiod shorter than the present recess, constituted a recess\nday\n6\nof the Senate during which the President could fill vacancies\nunder Article II, section 2, clause 3 of the Constitution.⁵\nI fully agree with the reasoning and with the conclusions\nreached in that opinion. Moreover, this ruling since has\nbeen buttressed by a decision of the Comptroller General, and\nby the judgment of the Supreme Court in an analogous field.\nThe decision of the Comptroller General (28 Comp. Gen.\n30 (1948) ) arose in the following circumstances:\nPresident Truman submitted to the Senate the nominations\nIn 1948, during the second session of the 80th Congress,\nof three judges. When the Senate, on June 20, 1948, ad-\njourned to December 31, 1948, unless sooner called back into\nsession by the congressional leadership, it had not acted on\nthose nominations. On June 22, 1948, the President issued\nfrom the Director of the Administrative Office of the United\nrecess appointments to the three judges.⁶ Upon inquiry\nStates Courts as to whether these judges could be paid, the\nComptroller General ruled, largely in reliance on 33 Op. A. G.\n20,' that an extended adjournment of the Senate is a \"re-\ncess\" in the constitutional sense, during which the President\nmay fill vacancies. Specifically, the Comptroller General\nsaid ( (28 Comp. Gen. 30, at 34 (1948) :\n\"What is a 'recess' within the meaning of that provision\n[Art II, section 2, clause 3 of the Constitution] ? Is it re-\nstricted to the interval between the final adjournment of one\nsession of Congress and the commencement of the next suc-\nceeding session; or does it refer also to the period following\nan adjournment, within a session, to a specified date as here?\nIt appears to be the accepted view-at least since an opinion\nof the Attorney General dated August 27, 1921, reported in\n33 Op. Atty. Gen. 20-that a period such as last referred to\nmade.\" is a recess during which an appointment properly may be\ntion of holiday. It concluded that the outcome hinged on the or for\na problems short presented by the adjournment of the Senate for a few days, the\n5 In its final part (33 Op. 20, 24-25 (1921)), the opinion discussed\nPresident whether the Senate was present to receive communications practical ques-\nto and that it was largely a matter of sound Presidential from the\nthe determine whether or not there was a real recess making it impossible discretion for\no Senate to give its advice and consent to executive appointments.\nAttorney General adhered to 33 Op. 20.\nThese appointments, of course, would not have been made had not the\nSO that he incorporated it in Its entirety as a part of his decision. General\nT important The Comptroller General considered that opinion of the Attorney\n7\nConsidering that the Comptroller General is an officer in\nthe legislative branch, and charged with the protection of the\nfiscal prerogatives of the Congress, his full concurrence in\nthe position taken by the Attorney General in 33 Op. 20 is\nof signal significance.\nOf equal importance is the decision of the Supreme Court\nin the Pocket Veto case, 279 U.S. 655 (1929), which, in a re-\nlated field, uses the same argument as the Attorney General\nin 33 Op. 20: vis., that the Presidential powers arising in the\nevent of an adjournment of the Congress are to be determined,\nnot by the form of the adjournment, but by the ability of the\nlegislature to perform its functions. Article I, section 7,\nclause 2 of the Constitution provides:\n\"If any Bill shall not be returned by the President within\nten Days (Sundays excepted) after it shall have been pre-\nsented to him, the Same shall be a Law, in like Manner as if\nhe had signed it, unless the Congress by their Adjournment\nprevent its Return, in which Case it shall not be a Law.\"\nThe issue presented in the Pocket Veto case, supra, was\nwhether an adjournment of the Senate from July 3 to No-\nvember 10, 1926, was an adjournment of the Senate \"pre-\nventing\" the return of a bill which had originated in that\nbody.\nThe Supreme Court, in analogy to the Attorney General in\n33 Op. 20, ruled that the test is not whether an adjournment\nis a final one terminating a session, but \"whether it is one\nthat 'prevents' the President from returning the bill to the\nHouse in which it originated within the time allowed.' 8\nApplying the reasoning of the Pocket Veto case, supra, to the\nsituation at hand, it follows that you have the power to grant\nrecess appointments during the present recess of the Senate,\nbecause that recess \"prevents\" it from advising and consent-\ning to executive nominations.\nThe commissions issued by you pursuant to Article II, sec-\ntion 2, clause 3 of the Constitution expire \"at the End of their\n[the Senate's] next session!\" This \"End of their next Ses-\n8 279 U.S. 655, 680 (1929). Wright V. United States, 302 U.S. 583 (1938),\nheld that a three-day adjournment of the Senate while the House of Repre-\nsentatives was in session, and during which a veto message of the President\nwas accepted by the Secretary of the Senate, did not amount to an adjourn-\nment preventing the return of the bill. For a discussion of the Pocket Veto\nproblem, see also 40 Op. A.G. 274 (1943).\n8\nsion\" is not the end of the meeting of the Senate, beginning\nwhen the Senate returns from its adjournment on August 8,\n1960, but the end of the session following the final adjourn-\nment of the second session of the 86th Congress, presumably,\nthe first session of the 87th Congress.\nThe adjournment of the Congress on July 3, 1960, pursu-\nant to Senate Concurrent Resolution 112 was not sine die.\nHence, it merely had the effect of a temporary \"dispersion\"\nof the Congress. 20 Op. A.G. 503, 507 (1892). It did not,\nhowever, terminate the second session of the 86th Congress.\n5 Hinds' Precedents of the House of Representatives, secs.\n6676, 6677 28 Comp. Gen. 30, 33-34 (1948) ; Ashley V. Keith\nOil Corporation, 7 F.R.D. 589 (D.C. Mass., 1947). Hence,\nwhen the Congress reconvenes in August it will not begin a\nnew session but merely continue the session which began on\nJanuary 6, 1960. Ashley V. Keith Oil Corporation, supra;\n28 Comp. Gen. 121, 123-126 (1948) ; see also Memorandum of\nthe Federal Laro Section of the Library of Congress to the\nSenate Committee on the Judiciary, dated November 5, 1947,\n93 Cong. Rec. 10576-77. It follows that the \"next session\"\nreferred to in Article II, section 2, clause 3 of the Constitu-\ntion is the session following the adjournment sine die of the\nsecond session of the 86th Congress, i.e., either the first ses-\nsion of the 87th Congress or a special session called by the\nPresident following the final adjournment of the second ses-\nsion of the 86th Congress.\nThis conclusion is fully supported by a ruling of the\nComptroller General relating to the previously discussed\nrecess appointments made by President Truman on June 22,\n1948. After the second session of the 80th Congress had\nadjourned from June 20 to December 30, 1948, and a num-\nber of recess appointments had been granted, the President\nnotified the Congress on July 15, 1948, to convene on July 26,\n1948. Proclamation No. 2796, 13 F.R. 4057; 28 Comp.\nGen. 121, 124 (1948). The Congress met accordingly, and\nA special session called by the President during a temporary adjournment\nof the second session of the 86th Congress would merely constitute a continua-\ntion of that session. Ashley V. Keith on Corporation, 7 F.R.D. 589, 591-592\n(D.C. Mass., 1947) and the authorities there cited; Memorandum of the\nFederal Law Section of the Library of Congress to the Senate Committee\non the Judiciary, dated November 5, 1947, 93 Cong. Rec. 10576-77 (1947) ;\n28 Comp. Gen. 121, 125-126.\n9\nagain adjourned on August 7, 1948, until December 31, 1948\n(28 Comp. Gen. 121, 122). The Comptroller General ruled\n\"that the reconvening of the 80th Congress on July 26, 1948,\npursuant to the President's proclamation of July 15,\n1948 * * * merely constituted a continuation of the second\nsession\" (28 Comp. Gen., at 126) ; hence, that \"the convening\nof the Congress during the period July 26 to August 7,\n1948 * * * was not the 'next session of the Senate' within\nthe meaning of Article II, section 2, clause 3 of the Constitu-\ntion, and that Judge Tamm's commission to office did not\nexpire on August 7, 1948, when the second session of the\n80th Congress adjourned\n*\n*\n*\"\n(28 Comp. Gen., at 127) 10\nThis year the Congress will reconvene, not pursuant to\nyour call, but according to its own adjournment resolution.\nIn these circumstances, the return of the Congress in August\nclearly is a continuation of the second session of the 86th\nCongress and not the next session, the termination of which\nwould cause the recess appointments to expire. Barring\nan adjournment sine die of the 86th Congress and the call-\ning of a special session, the recess commissions granted\nduring the present recess of the Senate will terminate at\nthe end of the first session of the 87th Congress. Officers\nwho serve at your pleasure, of course, may be removed by\nyou at any time.\nYou also have inquired whether you should submit to the\nSenate, when it reconvenes in August, nominations for those\npersons to whom you have given recess appointments dur-\ning this adjournment of the Senate, although their nomi-\nnations were pending but not finally acted upon at the time\nthe Senate adjourned. This question is SO intimately tied\nup with the pay status of the recess appointees that I shall\nanswer it in that context.\nII.\nThe circumstance that you have the power to make\nFay\nappointments during this adjournment of the Senate and\nthat the commissions SO granted-barring unforeseen cir-\n10 The Attorney General did not publish a formal opinion in\nwas in full agreement with that ruling.\nAugust 11, 1948, and the files of this Department, however, indicate that he on\nwith this incident A press release issued by Attorney General connection Clark\n562021-60-2\n10\ncumstances-will last until the adjournment sine die of the\nfirst session of the 87th Congress, however, does not mean\nnecessarily that your appointees can be paid out of appro-\npriated funds.¹¹ The Congress has limited severely the use\nof such moneys for the payment of the salaries of certain\nclasses of recess appointees.\nR.S. 1761, as amended by the act of July 11, 1940, c. 580,\n54 Stat. 751, 5 U.S.C. 56, 12 provides:\n\"No money shall be paid from the Treasury, as salary, to\nany person appointed during the recess of the Senate, to fill\na vacancy in any existing office, if the vacancy existed while\nthe Senate was in session and was by law required to be filled\nby and with the advice and consent of the Senate, until such\nappointee has been confirmed by the Senate. The provisions\nof this section shall not apply (a) if the vacancy arose within\nthirty days prior to the termination of the session of the Sen-\nate; or (b) if, at the time of the termination of the session\nof the Senate, a nomination for such office, other than the\nnomination of a person appointed during the preceding recess\nof the Senate, was pending before the Senate for its advice\nand consent; or (c) if a nomination for such office was re-\njected by the Senate within thirty days prior to the termina-\ntion of the session and a person other than the one whose\nnomination was rejected thereafter receives a recess com-\nmission Provided, That a nomination to fill such vacancy\nunder (a), (b), or (c) of this section, shall be submitted to the\nSenate not later than forty days after the commencement of\nthe next succeeding session of the Senate.\"\nThe import of this complicated provision, briefly, is as\nfollows: If the President makes a recess appointment to fill\na vacancy which existed while the Senate was in session, the\nPay\nappointee may be paid prior to his confirmation by the Senate\nin three contingencies:\na. If the vacancy arose within thirty days prior to the\ntermination of the session of the Senate;\nb. If at the time of the termination of the session of the\nSenate a nomination for this office was pending before the\nii In this opinion I shall use the term \"paid\" in the sense. of being paid out\nof appropriated funds in the regular course of business, i.e., prior to con-\nfirmation by the Senate, and without recourse to the Court of Claims.\n12 Hereafter usually referred to as 5 U.S.C. 56.\n11\nSenate, except where the nominee is a person appointed dur-\ning the preceding recess of the Senate; 13 or\nC. If a nomination for the office was rejected by the Senate\nwithin thirty days prior to the termination of the session,\nexcept where the person who receives the recess appointment\nis the person whose nomination was rejected.\nThe terminal proviso of 5 U.S.C. 56 requires in addition\nthat a nomination to fill a vacancy in those three contingen-\ncies must be submitted to the Senate not later than forty days\nSenate. after the commencement of the next succeeding session of the\nThe statute thus permits the payment of salaries to persons\nreceiving recess appointments to vacancies, which existed\nwhile the Senate was in session, in three situations, all of\nwhich are predicated on \"the termination of the session of the\nSenate.\" Here again, the question arises whether this term\nmust be interpreted technically-limited to the final adjourn-\nment of a session-or whether it permits the payment of\nsalaries to those who receive a recess appointment after a\ntemporary adjournment of the Senate.\nThe Comptroller General has ruled that \"the term 'ter-\nmination of the session' [has] * * * been used by the Con-\ngress in the sense of any adjournment,14 whether final or not,\nin contemplation of a recess covering a substantial period of\ntime\" (28 Comp. Gen. 30, 37). Considering that the Comp-\ntroller General is the officer primarily charged with the\nadministration and enforcement of 5 U.S.C. 56, his interpre-\ntation of that statute is of great weight. Independent re-\nexamination of the subject matter, moreover, causes me to\nconcur fully in his conclusions based largely on the purposes\nwhich the act of July 11, 1940, 54 Stat. 751, amending\n5 U.S.C. 56, was designed to accomplish.\nPrior to the enactment of the 1940 amendment, 5 U.S.C. 56\nprovided that if a vacancy existed while the Senate was in\nsession a person receiving a recess appointment to fill that\nvacancy could not be paid from the Treasury until he had\n13 36 Comp. Gen. 414 (1956) interprets clause (b), in analogy to clause (c),\nas if it read : If at the time of the termination of the session of the Senate\na nomination for this office was pending before the Senate, except where the\npreceding recess of the Senate.\nperson who receives the recess appointment is a person appointed during the\n14 Emphasis supplied.\n12\nbeen confirmed by the Senate. This statute caused serious\nhardship, especially when a vacancy occurred shortly before\nthe Senate adjourned, or where a session terminated before\nthe Senate had acted on nominations pending before it (H.\nRept. 2646, 76th Cong., 3d sess. ; see also letter from Attorney\nGeneral Murphy to Senator Ashurst, dated July 14, 1939,\nS. Rept. 1079, 76th Cong., 1st sess., p. 2). The inability to\npay recess appointees in those circumstances had the effect\nof either compelling the President to leave the vacancy un-\nfilled until the next session of the Senate, or causing the ap-\npointee to undergo the financial sacrifice of having to serve,\npossibly for a considerable period of time, without knowing\nwhether he could be paid (see letter of Attorney General\nMurphy to Senator Ashurst, supra).\nThe purpose of the 1940 amendment was \"to render the\nexisting prohibition on the payment of salaries more flexible\"\n(H. Rept. 2646, 76th Cong., 3d sess., p. 1) and to alleviate\nthe \"serious injustice\" caused by the law as it then stood (S.\nRept. 1079, 76th Cong., 1st sess., p. 2). Thus, 5 U.S.C. 56,\nas it stands now, is a remedial statute designed to permit the\nimmediate payment of recess appointees, provided the Presi-\ndent complies in good faith with the statutory conditions.15\nThe \"serious injustice\" caused by the inability to pay a\nrecess appointee, of course, is just as great and undesirable in\nthe case where the appointment was made after a temporary\nrecess of the Senate as where the commission had been\ngranted after a final adjournment. To restrict the words\n\"termination of the session\" to a final adjournment, there-\nfore, would be \"inconsistent with the obvious purpose of the\nlaw\" 28 Comp. Gen. 30, 37.\nIt follows that a person receiving a recess appointment 7\nduring a prolonged adjournment of the Senate may be paid,\nif the conditions of 5 U.S.C. 56 initially have been met, i.e.,\nif the vacancy arose within thirty days of the adjournment;\nor if a nomination was pending before the Senate at the time\nof the adjournment, except where the recess appointee has\nserved under an earlier recess appointment; 16 or if the Senate\n15 For that reason, the Comptroller General consistently has interpreted the\nstatute liberally ; see, e.g., 28 Comp. Gen. 30, 36-37 ; 238, 240-241 ; 36 Comp.\nGen. 444, 446.\n18 Cf. fn. 13, supra.\n13\nhad rejected a nomination within thirty days prior to its ad-\njournment, except where the recess appointee is the person\nwhose nomination had been rejected.\nThe recess appointee's right to be paid will continue through-\nout the constitutional term of his office, except for two con-\ntingencies: First, if the Senate should vote not to confirm\nhim, section 204 of the annual General Government Matters\nAppropriation Act (Cf. July 8, 1959, 73 Stat. 166) would\npreclude the further payment of salary out of appropriated\nfunds; second, the appointee's pay status may be cut off as\nthe result of noncompliance with the terminal proviso of\n5 U.S.C. 56, i.e., in the case of a failure to submit to the Senate\na nomination to fill the vacancy within forty days after \"the\ncommencement of the next succeeding session of the Senate.\nThe adjournment of the Senate after it reconvenes in August,\npaid.¹⁷ however, will not jeopardize the recess appointee's right to be\nIII.\nWhen the Senate reconvenes in August 1960, you should\nsubmit to it nominations for all persons who received\npointments during the adjournment of the Senate, including ap-\nthose whose nominations were pending but not finally acted\nupon when the Congress adjourned. This resubmission is\ndesirable in order to advise the Senate of the fact that recess\nappointments have been made, and is probably required in\norder to protect the pay status of the recess appointees.\nOrdinarily, when the Senate adjourns for more than thirty\ndays all nominations pending and not finally acted upon at\nthe time of the adjournment are returned to the President\nand may not be considered again unless resubmitted by the\nPresident (Rule XXXVIII (6) of the Standing Rules of the\n1960, it resolved that-\nSenate). However, when the Senate adjourned on July 3,\n**\n*\n*\nfinally acted upon at the time of\nthe status quo of nominations now pending and not\n*\n*\n*\nadjournment shall\nP. 14690.)\nbe preserved.\" (106 Cong. Rec. (Daily Ed., July 5, 1960),\nIT These two points will be discussed in Part III, infra.\n14\nThe Senate thus has waived Rule XXXVIII with the\nresult that nominations pending before it on July 3, 1960,\nbut not finally acted upon at that time, will not be returned\nto you. And, when the Senate reconvenes in August, those\nnominations will be before it, and may be considered in the\nstage in which they were at the time of adjournment. The\nresolution thus avoids much duplication of effort, especially\nin those instances where hearings already have been held on\na nomination.\nI do not read the resolution, in particular the statement\nthat the status quo of all pending nominations not finally\nacted upon shall be preserved, as purporting to freeze those\nnominations, and to prevent the President from giving recess\nappointments to those whose nominations were pending but\nnot finally acted upon at the time of the adjournment of the\nSenate. Any attempt of the Senate to curtail the Presi-\ndent's constitutional power to make recess appointments\nwould raise the most serious constitutional questions. And\nwhere, as here, the resolution not only fails to reveal any such\npurpose, but rather obviously was designed to obviate need-\nless work, I refuse to attribute to the Senate any intent to\ninterfere with the President's constitutional powers and\nresponsibilities.\n18\nIn spite of the suspension of Rule XXXVIII (6) of the\nStanding Rules of the Senate, I recommend strongly that\nwhen the Senate reconvenes in August you should submit to\nit new nominations for those persons whose nominations\nwere pending on July 3, 1960, and who have received ap-\npointments during the adjournment of the Senate. The\nsubmission of the new nominations would not constitute a\n18 The circumstance that the nominations remain pending before the Senate\nduring its recess does not affect the pay status of the recess appointees. 5\nU.S.C. 56 does not contain any prohibition against the payment of the salaries\nto appointees whose nominations are pending before the Senate after its ad-\njournment Clause (b), it is true, refers to the situation that a nomination\nis pending before the Senate at the time of the termination of the session of\nthe Senate. There is, however, nothing in the spirit and the language of 5\nU.S.C. 56 to the effect that clause (b) is inapplicable where this nomination\nremains pending following the termination of the session. Moreover, 5 U.S.C.\n56 has been interpreted to the effect that the question of whether a person\nmay be paid is to be determined as of the time of the adjournment of the\nSenate preceding the recess appointment and not as of a later time (28\ntroller General's ruling, infra).\nComp. Gen. 121, 127-129, and see the discussion of that part of the Comp-\n15\nmeaningless duplication of effort, nor jeopardize the pay\nstatus of the recess appointees. The failure to do so, how-\never, may constitute a violation of the terminal proviso of\n5 U.S.C. 56 and delay, if not entirely prevent, the payment\nof salaries to the appointees.\nFirst. Nominations submitted to the Senate customarily\nindicate the circumstance, where applicable, that a nominee\nis serving under a recess appointment. The preadjourn-\nment nominations of those who thereafter received recess ap-\npointments, of course, do not contain that information. The\nSenate has a substantial interest in being advised of the fact\nthat a nominee is serving under such an appointment. Such\nappointment fills the position temporarily, and confirmation\ntherefore is no longer urgent. This may be an important\nconsideration to the Senate when it returns for what is hoped\nto be a short session. On the other hand, if the Senate is\nstrongly opposed to an appointee it may vote to deny con-\nfirmation, and thus, for all practical purposes force him to\nresign by cutting off his pay. The submission of a new\nnomination for a recess appointee after the return of the\nSenate, accordingly, serves a distinct purpose.\nSecond. The terminal proviso of 5 U.S.C. 56 requires the\nsubmission of the nomination of a person who received a\nrecess appointment \"to the Senate not later than forty days\nafter the commencement of the next succeeding session of the\nSenate.\" Failure to comply with this proviso presumably\nresults in the suspension of the appointee's right to be paid\nout of appropriated funds. While the reconvening of the\nSenate after a temporary adjournment is not the commence-\nment of the next session of the Senate in the ordinary sense\nof that term, we have seen that 5 U.S.C. 56 uses those words\nin a nontechnical way. If the words \"termination of a ses-\nsion\" in clauses (a), (b), and (c) have been interpreted as\nincluding a temporary adjournment which does not termi-\nnate a session, it is likely that the words \"commencement of\nrefer to the reconvening of the Senate after any adjourn-\nthe next succeeding session of the Senate\" correspondingly\nment, regardless of whether, technically, it begins a new ses-\nsion. In these circumstances, prudence suggests that I base\nmy advice on the assumption that 5 U.S.C. 56 may require\n16\nvenes in August. 10\nthe submission of new nominations when the Senate recon-\nviso 5 U.S.C. 56 can be rested safely on the ground pro- that\nI do of not believe that noncompliance with the terminal\nnominations made prior to adjournment but not finally acted\nresult upon at that time are still pending before the Senate the\nThe of the suspension of Senate Rule XXXVIII(6). as\ntingency. It could be argued, of con-\nstatute 20 does not contain an exception covering that\npointment information a should redundant not may be that ceremony. construed be a of nominee considerable SO However, as is to serving require interest as course, we under the to have performance that a shown, recess a statute ap- the of\nany event, I should hesitate to recommend the Senate. for In\nquirement in an area as technical as the appointment and re-\nequitable reasons the omission of an express statutory quasi-\npay of Federal officers.\nIn weighing these conflicting considerations, it\ntions to me, on the one hand, that the submission of new nomina- appears\nburden. to the Senate does not constitute an intolerably\nlished Comptroller General-with which I fully agree-have\nMoreover, as I shall show presently, rulings of heavy the\njeopardize the recess appointee's pay status. On the not\nthat compliance with the letter of the statute will estab-\nresult hand, the in failure to resubmit a nomination conceivably other\ncircumstances, I recommend that when the Senate\nthe suspension of the appointee's pay. In these may\nofficials venes in August nominations should be submitted for recon-\nof the who received appointments during the adjournment all\nSenate, including those whose nominations were pend-\nmeaning. the succeeding The session of the Senate\" should be given \"commencement of\n19 next Arguments, of course, can be made that the words\nport the conclusion within which to submit the nomination provise to gives the President\nforty days circumstance that the terminal their traditional\nSenate because, as a that the proviso refers to the next the regular Senate might sup-\nnomination, it could be 8, 1960, and before the President has forty days after\nits return on August days. If the Senate should adjourn within sessions of the Senate\nrarely last forty matter of experience, adjourned session of the\nthe Constitution, argued, in analogy to Article submitted the\nhas 20 been \"prevented\" that by compliance the adjournment with 5 of U.S.C. the 56 has I, been section waived 7, clause because 2 of it\nample on time for in order to insure that the nomination the Senate Committee\nthe The Judiciary terminal proviso to 5 U.S.C. 56 was inserted Senate. by\nS. Rept. 1079, 76th adequate Cong., consideration 1st sess., p. 2. by any incoming session \"will be of submitted the Senate.\" in\n17\ning before the Senate at the time of its adjournment on\nJuly 3, 1960. 21 As a matter of precaution, I urge that\nnominations be submitted again when the Senate commences\na new session in the technical sense.\nThe recess appointees' pay status will not come to an end\nwhen the Senate adjourns after its August sitting. When\nthe Senate concludes its session after reconvening in Au-\ngust, a situation will be presented which appears to fall\nwithin the exception to 5 U.S.C. 56, clause (b) : The Senate\nthen will have terminated a session, and at that time there\nwill be pending before it the nomination of a person who\nhad received an appointment during the preceding recess\nof the Senate. This raises the question of whether the pay\nrights of a recess appointee, whose appointment originally\ncomplied with the requirements of 5 U.S.C. 56, can be cut\noff by the circumstances existing at the time of the subse-\nquent termination of a session of the Senate. The opinion\nof the Comptroller General in 28 Comp. Gen. 121 cogently\ndemonstrates that this is not the case because the words\n\"termination of the session of the Senate\" in 5 U.S.C. 56\nuniformly refer to the session immediately preceding the\nrecess when the appointment was made, and not to any\nsubsequent termination.\nAn analysis of 5 U.S.C. 56 shows that in clauses (a) and\n(c) the words \"termination of the session of the Senate\"\nunquestionably relate to the session immediately preceding\nthe recess of the Senate during which the appointment was\nmade and not to a later one. The Comptroller General in-\nferred from this that \"it would be wholly inconsistent to\nsay that the phrase 'termination of the session' as used\ntherein [clause (b) had reference to other than the session\npreceding the recess when the appointment was made. 22 * *\n*\nIn other words, the entire statute speaks as of the date of\nthe recess appointment under which the claim to compensa-\n31 Considering that it is desirable to obtain the advice and consent of the\nSenate to a nomination at the earliest possible moment, my recommendation\nincludes the submission of nominations for those who received recess appoint-\nments to vacancies which occurred after the adjournment of the Senate, al-\nthough 5 U.S.C. 56 does not cover those appointments.\n= The Comptroller General also explained that the statute uses the words\n\"termination of the session\" in the specific sense, hence, that it refers to the\ntermination of a particular session, i.e., the one preceding the recess appoint-\nment \"rather than to just any session\" 28 Comp. Gen. 121, 128.\n18\ntion arises.\" (28 Comp. Gen. 121, 128 (1948) ). The Comp-\ntroller General, therefore, concluded that the right to\ncompensation, once vested, does not become defeated by a\nsubsequent adjournment. He realized that under his in-\nterpretation the words \"termination of the session of the\nSenate\" in 5 U.S.C. 56 refer to a different session than the\nwords \"End of their next Session\" in Article II, section 2,\nclause 3 of the Constitution. He attributed this \"apparent\ninconsistency\" to the circumstance that the recess appoint-\nment provisions of the Constitution and of 5 U.S.C. 56 serve\ndifferent purposes (28 Comp. Gen. 121, 129).\nI fully agree with the conclusions of the Comptroller\nGeneral reached on the basis of the statutory language. I\nbelieve, however, that this result may be supported by two\nadditional, broader considerations. First, the purpose of the\n1940 act amending 5 U.S.C. 56 was to eliminate the hard-\nship and injustice resulting from the inability to pay recess\nappointees appointed to vacancies which existed while the\nSenate was in session, where the vacancies arose shortly be-\nfore an adjournment of the Senate, or where a nomination\nwas pending before the Senate, but where the Senate ad-\njourned before acting on it. The purpose of the 1940 statute\nwas to permit the payment of salaries out of appropriated\nfunds in those cases. It would create a new instance of the\nvery hardship which the statute was intended to alleviate,\nif the right to compensation, once accrued, could be cut off\nby subsequent events, such as the reconvening and subse-\nquent adjournment of the Senate, and if a recess appointee\nthereafter were required to work without pay for the rest of\nhis constitutional term, or until the Senate should confirm\nhim. An interpretation of the statute, which gives rise to\nresults SO inconsistent with the purposes it is designed to\nserve, must be rejected.\nSecond, it is the basic policy of the United States that a\nperson shall not work gratuitously for the Government, or\nbe paid for such work by anyone other than the Government\n(31 U.S.C. 665 (b) ; 18 U.S.C. 1914). It is well recognized\nthat a person who is not paid cannot be expected to perform\nhis work zealously, and that he may be subjected to a host\nof corrupting influences. A statute which provides that a\nperson cannot be paid by the Treasury until the happening\n19\nof a future event, therefore, must be strictly construed.\nEven less favored is an interpretation which would result in\nthe defeasance of a right to be paid, once it has accrued. In\nthe case of any ambiguity, a statute should be read so as to\nthe United States.\npermit the current compensation for work performed for\nI therefore conclude that an adjournment of the Senate\nduring, or terminating, the second session of the 86th Con-\ngress will not affect the pay status of a person appointed\nduring the current recess of the Senate, and whose appoint-\n56.23 ment originally complied with the requirements of 5 U.S.C.\nRespectfully,\nLAWRENCE E. WALSH,\nActing Attorney General.\nafter the It was in session, and who is not confirmed, when the existed while\n23 Senate A final caveat: A recess appointee filling a vacancy which\ncaution, reconvenes a in August, may not be given, out of a Senate adjonrns\nsary because second his recess appointment. Such second appointment superabundance of\nbring the of the second session of the 86th Congress; following the final\nadjournment term runs until the end of the first session is unneces-\ncelvably, appointee within the exception to 5 U.S.C. 56, clause moreover, it might con-\nresult in the suspension of his salary. Cf. 28 Comp. Gen. (b) 30, and, 37-38.\nU.S. GOVERNMENT PRINTING OFFICE: 1980\nComp. Gen.]\nDECISIONS OF THE COMPTROLLER GENERAL\n121\nretirement, and since there is included in such average pay the he\nreceived as a commissioned officer during a portion of such six months' pay\nperiod, it is apparent that his retired pay is being received \"for or\naccount of services as a commissioned officer,\" especially when it on is\nconsidered that approximately 60 percent of his retired pay is received\nsolely by reason of the inclusion of the pay of his commissioned rank.\nIt is solely by reason of his commissioned service that a substantial\nscribed portion of his retired pay is computed on the basis of the\ntion by law for the commissioned rank held by him during pay a pre-\nGen. 271. While it might be contended that only the difference be-\nof the 6-month period preceding his retirement. See 26 Comp. por-\ntween the retired pay he would have received as an enlisted man and\nthe retired pay he is receiving by reason of the inclusion of commis-\nsioned service actually represents retired pay received for or on\nhis count of commissioned service, the law governing the computation ac- of\nretired pay authorizes no alternative basis for computing retired\npay under such circumstances. Cf. 26 Comp. Gen. 711. That is to\nsay, the the act of June 30, 1941, authorizes the computation of retired\non basis of the average pay the enlisted man received for six months pay\nenlisted such 6-month average computation the period during which the\nprior from to retirement, and there would be no authority for excluding\nthat man served as a commissioned officer, or for any assumption\nthe enlisted man would have served in any particular enlisted\ngrade during the entire 6-month period but for the fact that he served\nas a commissioned officer. Of. 27 Comp. Gen. 129, 131. Hence, it\nmust be held that Master Sergeant Matheson is in receipt of retired\npay \"for or on account of services as a commissioned officer\" within\nthe meaning of that phrase as used in section 212, supra, and since his\ntion retired pay is less than $3,000 per annum, and his civilian\nis in excess of $3,000 per annum, the concurrent payment compensa- of retired\npay and civilian compensation is not authorized.\nis not authorized.\nAccordingly, payment on the voucher, which is retained in this Office,\n[B-77903]\nAppointments-Recess Appointments\nto The Presidential reconvening of the Senate of the S0th Congress on July 20,\nuntil December proclumation, and its subsequent adjuurnment 1948, pursuant\nSenate within Congress. and not as constituting the \"next of the second\nsession of the S0th 31, 1948, is to be regarded merely as a continuation on August 7, 1918,\nSO that commissions the meaning of Article II. section 2, clause 3, of the Session\" of the\nof persons holding recess appointments as Federal Constitution, judges\n122\nDECISIONS OF THE COMPTROLLER GENERAL\n128\nmade prior to July 20, 1948, may not be considered as having expired on August 7,\n1048.\nPersons serving under ralid recess appointments as Federal judges when the\nSenate had reconvened in the saine session. and whose nominations were pend-\ning before the Senate at the time that body again recessed to a definite date may\ncontinue to receive the salary attached to the offices, provided they continue to\nserve under their original recess appointments so as to render inapplicable the\nprohibition in section 1701, Revised Statutes, as amended. against payment of\ncompensation to persons appointed during the recess of the Senate who had\nreceived appointments during a preceding recess and whose nominations were\npending at the time the second recess appointment was made.\nComptroller General Warren to the Director, Administrative Office\nof the United States Courts, August 26, 1948:\nI have letter of August 10, 1948, from the Assistant Director, refer-\nring to the decision of this Office dated July 16, 1948, to you, B-77963,\n2S Comp. Gen. 30, and presenting a further question concerning the\nright to payment of salary of Honorable Edward Allen Tamm, Hon-\norable Samuel Hamilton Kaufman, and the Honorable Paul P. Rao,\nall of whom received recess appointments to the Federal judiciary from\nthe President during the recess of the Congress which occurred June\n20 to July 26, 1948.\nIt is stated in the aforesaid letter that the names of these three judges\nwere again submitted to the Senate for confirmation on July 29. 1948,\nafter it had reconvened on July 26, 1948, pursuant to the President's\nproclamation (Proc. No. 2796, 13 F. R. 4057) ; that the Senate took no\naction on these nominations, and that they were still pending when it\nadjourned on August 7, 1948, pursuant to House Concurrent Resolu-\ntion No. 222, reading as follows:\nResolved by the Поияе of Representatives (the Scnate concurring), That when\nthe two Houses adjourn on Saturday, August 7, 194S, they stand adjourned until\n12 o'clock meridian on Friday, December 31. 1945, or until 12 o'clock meridian\non the third day after the respective Members are notified to reassemble in\naccordance with section 2 of this resolution, whichever ereut first occurs.\nSEC. 2. The President pro tempore of the Senate, the Speaker of the House of\nRepresentatives, the acting majority leader of the Senate, and the majority\nleader of the House of Representatives, all acting jointly, shall notify the Mem-\nbers of the Senate and the House, respectively, to reassemble whenever, in their\nopinion, the public interest shall warrant it.\nIt is indicated in the letter that, in accordance with the aforemen-\ntioned decision of July 16, 1948, the three judges received payment of\nsalary in due course after the assumption of office under their recess\nappointments. A decision now is requested as to whether the occur-\nrence of the facts, as set forth above, subsequent to the rendition of the\ncited decision, requires the suspension of payment of their salaries.\nIn addition to the above stated facts, it is understood that Judges\nTamm, Kaufman, and Rao have not been given interim appointments\nsince the adjournment of the Congress on August 7, 194S, pursuant to\nthe resolution above quoted.\nComp. Gen.]\nDECISIONS OF THE COMPTROLLER GENERAL\n123\nIn considering the question presented, it is deemed appropriate to\nadvert briefly to the facts and the holding in the decision of July 16,\n1945. Since the relevant circumstances in the case of each of the\njudges involved do not differ in any material respects, the present mat-\nter will be considered, for the purpose of simplification, upon the basis\nof the facts in Judge Tamm's case. The nomination of Judge Tamm\nwas sent to the Senate on February 3, 1948. The Senate, without act-\ning on the nominations, adjourned pursuant to House Concurrent\nResolution 218, on June 20, 1948, to a specified date, namely, Friday,\nDecember 31, 1948, unless notified to reassemble at an earlier date by\ncall of its officers. On June 22, 1948, Judge Tamm was given a recess\nappointment by the President to the office he now holds and, on June\n28, 1948, he took the oath of office and entered on duty. Upon the basis\nof these facts, there was presented for consideration the question as\nto whether payment of salary could be made in view of the provisions\nof section 1701, Revised Statutes, as amended, 5 U.S. C. 56, which are\nas follows:\nNo money shall be paid from the Treasury, as salary, to any person appointed\nduring the recess of the Senate, to fill a vacancy in any existing office, if the\nvacancy existed while the Senate was in session and was by law required to be\nfilled by and with the advice and consent of the Senate, until such appointee has\nbeen confirmed by the Senate. The provisions of this section shall not apply\n(a) if the vacancy arose within thirty days prior to the termination of the ses-\nsion of the Senate; or (b) if, at the time of the termination of the session of the\nSenate, a nomination for such office, other than the nomination of a person ap-\npointed during the preceding recess of the Senate, was pending before the Senate\nfor its advice and consent; or (c) if a nomination for such office was rejected by\nthe Senate within thirty days prior to the termination of the session and a person\nother than the one whose nomination was rejected thereafter receives a recess\ncommission Provided, That a nomination to fill such vacancy under (a), (b),\nor (c) of the section, shall be submitted to the Senate not later than forty days\nafter the commencement of the next succeeding session of the Senate.\nIn the decision of July 16, 1948, it was held that the adjournment of\nthe Senate on June 20, was a \"termination of the session\" within the\nmeaning of clause (b) of section 1761, Revised Statutes, supra, and\nthat Judge Tamm, having been previously nominated during that ses-\nsion, and his nomination having been pending in the Senate when it\nadjourned on June 20, was entitled to be paid the salary of the office\nunder his appointment of June 22, 1948.\nAs pointed out in your letter, since the foregoing decision of July\n16, 194S, was rendered, the Senate reconvened on July 26, pursuant to\nthe call of the President; Judge Tamin's nomination was again sub-\nmitted to the Senate on July 29; and On August 7, the Senate ad-\njourned until December 31, 1948. What effect then, if any, do the\nrecent meeting of the Senate and the ensuing recess have upon the\nright of Judge Tanim to continue to receive the salary of his office?\nAs was indicated in the decision of July 16, 1948, the appointment of\nJudge Tamm on June 22, 194S, appears to have been a valid recess\n124\nDECISIONS OF THE COMPTROLLER GENERAL\n[28\nappointment by the President under Article II, section 2, clause 3, of\nthe Constitution which provides as follows:\nThe President shall have Power to fill up all Vacancies that may happen dur-\ning the Recess of the Senate, by granting Commissions which shall expire at the\nEnd of their next Session.\nHence, there would appear to be for consideration first the question\nas to whether the convening of the Congress on July 26, 194S, and its\nsubsequent adjournment on August 7, 1948, constituted the next session\nof the Senate within the meaning of the said article of the Consti-\ntution and that, as a consequence, Judge Tamm's commission expired\non the latter date. If the answer to the said question be in the affirma-\ntive, it would seem to follow that the payment of the salary to Judge\nTamm beyond August 7 properly may not be made. However, in\nview of the matters hereinafter set forth, I have no doubt but that\nthe answer to the said question must be in the negative. In the decision\nof July 16, 1948, it was pointed out that the adjournment of the\nCongress on June 20, 1948, pursuant to House Concurrent Resolution\nNo. 218 was not an adjournment sine die but was an adjournment to a\nspecific date, and it was stated that said adjournment merely con-\nstituted a recess of the second session of the 80th Congress. The said\nresolution No. 218 reads as follows:\nResolved, That when the two Houses adjourned on Sunday, June 20, 1048. they\nstand adjourned until 12 o'clock meridian on Friday, December 31, 1948, or\nuntil 12 o'clock meridian on the third day after the respective Members are\nnotified to reassemble in accordance with section 2 of the resolution, whichever\nevent first occurs.\nSEC. 2. The President pro tempore of the Senate, the Speaker of the House of\nRepresentatives, the acting majority leader of the Senate, and the majority\nleader of the House of Representatives, all acting jointly, shall notify the Mein-\nbers of the Senate and the House respectively, to reassemble whenever, in their\nopinion, the public interest shall warrant it.\nThe correctness of the referred-to statement is substantiated by the\nfacts hereinafter set forth.\nFirst, it will be observed that the Proclamation of the President\n(Proc. No. 2796, 13 F. R. 4057) notifying the Congress to assemble\non July 26, 1948, speaks merely of a convening of such body and does\nnot refer to the meeting as an \"extra\" or \"special\" session.\nSaid proclamation reads, in part, as follows:\nWhereas the public interest requires that the Congress of the United States\nshould be convened at twelve o'clock. noon, on Monday, the twenty-sixth day\nof July, 1048, to receive such communication as may be made by the Executive:\nNOW, THEREFORE I, HARRY S. TRUMAN, President of the United States\nof America, do hereby proclaim and declare that an extraordinary occasion\nrequires the Congress of the United States to convene at the Capitol in the City\nof Washington on Monday, the twenty-sixth day of July, 194S. at twelve niclock,\nnoon. of which all persons who shall at that time be entitled to act as members\nthereof are hereby required to take notice.\nTo this point, the instant situation is identical, in all material respects,\nto that which existed in connection with the adjournment of the first\nConip. Gen.]\nDECISIONS OF THE COMPTROLLER GENERAL\n125\nsession of the S0th Congress on July 27, 1947, by Senate Concurrent\nResolution No. 33, and its reconvening on November 17, 1947, pursuant\n10 Proclamation No. 2751, issued by the President on October 23, 1947.\n12 F. R. 6011. The said adjournment of the first session of the 80th\nCongress and its subsequent reconvening on November 17, 1947, was\nthe subject of an opinion by Judge Wyzanski of the United States\n1947 in the case of Ashley V. Keith Oil Corporation, et al., 7 F. R. D.\nDistrict Court, District of Massachusetts, rendered on November 18,\n580. The question there involved was the effective date of certain\namendments to the Federal Rules of Civil Procedure which\ntake effect \"three months subsequent to the adjournment of the were first to\nWyzanski are believed to be so pertinent to the present situation that\nregular session of the 80th Congress.\" The remarks of Judge\nI feel they should be quoted herein at length.\nThe opinion reads in part as follows (pages 590-592) :\nnew session Congress either adjourning the session sine die; second, by the of the two\nHouses to of at least two ways: First, by a concurrent resolution brought\nThe a close first in regular session began January 3, 1947. That session could be\na new Amendment to the United States Constitution which of Section 2 of\nthe Twentieth under an Act of Congress or under that clause beginning of a\nunless they \"meeting shall begin at noon on the 3rd day of January [in provides every year] that\nNeither [Congress] shall by law appoint a different day.\"\nas operative.\nTec become of those two methods of adjourning the first session of Congress has\nConcurrent die. that when the S0th Congress was in session last session sine\nCongress It is true has not as yet passed a resolution to adjourn the first\ntemporary provisions not now material. But that resolution notified to re-\nassemble under from July 27, 1947 until January 2, 194S, unless that Congress\nshould adjourn Resolution No. 33 set out in the margin, providing summer it passed\n1943, adopted Congress. 2d Sess. It resembled Senate Resolution House Docu-\nment #S10, 75th $ 040 of the Rules of the House of Representatives, customarily used for a\nrecess. See adjournment. It was the form of resolution was a mere\nending an old 7471, under which Congress separated and reassembled Record, 7Sth\nCong., 1st Sess. by the 7Sth Congress, First Session, Congressional of July S,\nthe 80th 7Sth Cong., 1st Sess., 7519. Thus it cannot 50S; Congres-\nsional Record, session or beginning a new session. Cf. 57 Stat. without\nclosed the Congress first session by sine Concurrent die as of Resolution July 27, 1947. No. 33 or by properly any other be said measure that\nResolution No. only relevant law passed by the Eightieth Congress is Amend-\nment. ning The a new under either an Act of Congress or the Twentieth by the begin-\nNor of has the session first session of the S0th Congress been closed as yet\ngress shall 156, which states that \"the second session of the Senate Joint\nsession as of 1st 11: Sess. 10643. That act would only operate to terminate Record,\n80th Cong., begin at noon Tuesday, January 6. 1948.\" Congressional Eightieth Con-\nvanced by the Twentieth 50 a. m. January 6, 194S. And this date is not in the first\nthere is no law appointing Amendment a different day. which sets the date as January any 3 way only ad- if\nmentarian So far my of reasoning appears to be entirely in accord with that\nof the Director. the Administrative Office of the United States Courts, and the\nDirector of the House of Representatives. the Secretary of the Senate of the Parlia-\nruling of Judge September 1947, pp. 20. 27, although it seems Annual Report\nBut there Reeves in Shafir V. Wabash R. Co., D. C. IV. D. Mo., contrary 1 to the\nact S0th of Congress has or already been brought to a close not by concurrent session of the\nCongress remains the difficult problem as to whether the first F. R. D. 467.\nreconvening by the Twentieth Amendment, but by the action resolution, by\nissued October on November 17 pursuant to the Proclamation of President of Congress Truman in\non 23, 1947, No. 2751. 12 Fed. Reg. No. 210; Oct. 25, 1947.\n126\nDECISIONS OF THE COMPTROLLER GENERAL\n[28\nArticle II, § 3, of the United States Constitution provides that the President\n\"may on extraordinary occusions, convene both Houses, or either of them.\"\nThis is language of unusual breadth. It is not limited to the situation where :1\nparticular Congress has never met in session. or where a Congress has met and\nadjourned sine die. It also covers the situation where Congress or, either House\nis not meeting because it is in recess under a temporary adjournment.\nIf the President convenes a Congress that has never met, of course, be is con-\nrening it in a new session, which is called in the proclamation nn \"extra\"\nsession. See e. g. Proclamation of President Hoover. March 7, 1920. 48 Stat. 29S1.\nIf the President convenes a Congress that has met but adjourned sine die, be is\nlikewise convening it in a new session, which is called an \"extra\" session. See\ne. g. Proclamation of President Roosevelt, Sept. 10, 1939, No. 2305, 5+ Stat\n2660. But in the case at bar we are faced with a situation where when the\nPresident issued his proclamation Congress had met and adjourned only tem-\nporatily. Is the reconvening of Congress pursuant to the President's call auto-\nmatically the beginning of a new session and the close of an old session? Jeffer-\nson evidently thought it would be. § 51 of his Manual states that if Congress\nis \"convened by the President's Proclamation, this must begin a new session.\nand of course determine the preceding one to have been a session.\" This manual\nis, of course. entitled to great weight because since 1S37 it has been, by virtue\nef a still effective rule of the House of Representatives, governing authority\nin that House in all cases where there is no conflict with the standing rules\nand orders of that House. House Rule 43. House Document #S10, 78th Congress,\n2d Sess. See Congressional Record. S0th Cong., 1st Sess., 36.\nOn the other hand, the present Parliamentarian of the House and Secretary\nof Senate have considered the reassembling of the Congress on November 17,\n1947. as a continuation of the first session. In their judgment no extra or special\nsession has begun. And their riew is finding expression every day in the pagina-\ntion of the Congressional Record and in like official Congressional documents.\nthe matter does not appear to have been debated.\nCongress SO far has apparently acquiesced in this action of its delegates; though\nMoreover, the view of these officers of Congress is not in conflict with any\nspecific language of President Truman's Proclamation. Unlike the Proclumations\nof Presidents Hoover and Roosevelt already cited, the Proclamation of Presi-\ndent Truman dated October 23, 1947. does not refer to an \"extra\" session which\nwill result from the convening of Congress pursuant to the President's call.\nIt is unnecessary for me in the case at bar to decide which of these conflicting\nviews is correct. Even if Jefferson's manual is correct. the new amendment\nto the Rules cannot go into effect prior to February 17. 1948. It is quite possible\nthat before then Congress by legislative action will conclusively remove any\nambiguity as to the proper numerical description of its present session, or will\ninto effect.\nmore explicitly provide a date when the new amendments to the rules shall go\nThereafter, the first session of the S0th Congress adjourned sine die\non December 19, 1947, thus evidencing the correctness of the afore-\nsaid views of Judge Wyzanski that the adjournment of the Congress\non July 27, 1947, pursuant to Senate Concurrent Resolution No. 33,\nconstituted a recess and that the reconvening of the Congress on No-\nvember 17, 1947, pursuant to the proclamation of the President issued\non October 23, 1947, was a continuation of the first session and not a\nnew session.\nIn the light of the foregoing. it seems clear that the reconvening\nof the 80th Congress on July 26, 1948, pursuant to the President's\nproclamation of July 15, 194S (Proc. No. 2796, quoted above), merely\nconstituted a continuation of the second session.\nFurthermore, and of greater significance, is the fact that the Con-\ngress itself considers the proceedings between July 26 and August 7,\n1948, to be a continuation of those of the second session which had ad-\nComp. Gen.]\nDECISIONS OF THE COMPTROLLER GENERAL\n127\njourned on July 20, 1918. In such connection. the calendars of both\nthe House of Representatives and the Senate covering the proceed-\nings that between July 26 and August 7 show that the business thereof\ntained gressional Record for the period involved refers to the matters\nwas of the second session of the 80th Congress. Also, the Con-\nsecond therein as the proceedings and debates of the 80th Congress, con-\nsession. In addition, it is understood that the Journals of the\nond Congress show the proceedings of the period as being those of the sec-\nsession of the 80th Congress.\nFinally, it will be observed from House Concurrent Resolution No.\nsaid resolution were notified that to reassemble in accordance with section respective 2 of\nMembers December 31, 1948, or until the third day after the\nuntil -222, quoted above, that, on August 7, 1945, the Congress adjourned\nSession\" clause 1948-subsequent convening In my of opinion, of the the Senate to Congress the Judge is, foregoing within by the Tamm's during leaders the demonstrates meaning the appointment-was of period the of majority July Article conclusively 26 party. not II, to August section the that \"next the 7,\n-cffice 3, of the Constitution, and that Judge Tamm's commission 2,\nthe 80th did not expire on August 7, 1948, when the second session of to\ntion No. Congress adjourned pursuant to House Concurrent Resolu-\ninent Judge Tamm properly may be made after said date unless such salary\nto 222, supra. It follows, therefore, that the payment of\nRevised may be said to be prohibited by the provisions of section 1761, pay-\nStatutes, as amended, supra.\nhis 1948, Judge Tamm was entitled to the payment of salary under 16,\nAs that hereinbefore stated, it was held in Office decision of July\nhis (b) of section 1761 of the Revised Statures, as amended, since of\nclause recess appointment of June 22, 1948, by virtue of the provisions\n-20, nomination was pending in the Senate when it adjourned on June\npayment 194S. prohibition While clause (b) is, in itself, an exception to the salary\nrecess the the appointees ception. is contained reasoning session appointment That of whose in of the the is the naminations to Senate, said during say, decision of clause the the provided the original clause what of preceding were July is, permits the pending statute. in appointee recess effect, salary it upon will an of the exception had the payments be noted Senate. termination not received that to to Under the recess there ex- of a\n-ment House of the Congress on June 20, to December 16-holding 31, 1948, that the adjourn-\nwithin Concurrent Resolution 218, πas a \"termination of the pursuant to\nit the meaning of section 1761, Revised Statutes, as amended- session\"\nextent. 1948, likewise constitutes a \"termination of the session\"\n31, must be considered that the adjournment on August 7, to December\nAnd, since there πas another nomination of Judge to Tamm that\n128\nDECISIONS OF THE COMPTROLLER GENERAL\n[28\nto office pending in the Senate on August 7, the real question is whether\nthe present case falls within the class of those specifically excluded\nfrom the exemption provided by clause (b).\nIn fact, the issue can be further simplified. As illustrated above,\nthere are now involved not one but two terminations of Senate ses-\nsions within the meaning of the subject statute-that of June 20 and\nthat of August 7. The decision here would appear to turn upon\nwhether the phrase \"termination of the session\" in clause (b) should\nbe regarded as having reference to the first or the second adjournment\ndate. If it refers to the earlier date only the conclusion of the de-\ncision of July 16 still obtains; if, however, the term now must be\nheld to refer to the later date, Judge Tamm is specifically excluded\nfrom the exemption provided generally by clause (b) since he would\nbe a person who, though having a nomination pending at the termi-\nnation of the session (August 7), would have been appointed \"during\nthe preceding recess.\"\nAs stated above, the prohibition in section 1761, Revised Statutes,\nis against the payment of salary to a recess appointee if the vacancy\nto which he is appointed \"existed while the Senate was in session.\"\nThere can be no question that the \"session\" of the Senate in contem-\nplation there is the session immediately preceding the recess during\nwhich the appointment was made. Clause (a), as added by the 1940\namendment, is to the effect that the prohibition shall not apply if the\nvacancy arose within 30 days \"prior to the termination of the session\nof the Senate.\" The same conclusion must be reached with respect\nto the \"session\" referred to in this exception. That is, it likewise must\nbe the session immediately preceding the recess during which the ap-\npointment was made. So that, coming to clause (b), it would be\nwholly inconsistent to say that the phrase \"termination of the session\"\nas used therein had reference to other than the session preceding the\nrecess when the appointment was made. Clause (c) is the same. In\nother words, the entire statute speaks as of the date of the recess\nappointment under which the claim to compensation arises.\nThis position is further supported by the general rule that, in it\nstatute, the article \"the\" is to be construed as having a specifying or\nparticularizing effect, opposed to the indefinite or generalizing force\nof \"a\" or \"any.\" Thus, the language \"termination of the session\"\nordinarily would be viewed as having reference to a particular session\nrather than to just any session. Here, the session preceding the recess\nwhen the appointment is made would be the one most naturally con-\ntemplated by the language.\nIn this view of the statute, it must be concluded that the right of\nJudge Tamm to compensation under his recess appointment of June\n22, 1948, to which he became entitled under clause (b) of section 1761,\nComp. Gen.]\nDECISIONS OF THE COMPTROLLER GENERAL\n129\n!S\nRevised Statutes, as amended, has not been divested or otherwise\nT\nd\naffected by the events occurring subsequent to such appointment and\nvesting of right. In other words, the subsequent occurring events\ne,\nhave not had the effect of placing Judge Tamm in the position of a\nperson appointed during the recess of the Senate who had received an\nS-\nid\nappointment during a preceding recess of the Senate and whose nomi-\nnation was pending before the Senate at the time the second recess\non\nld\nappointment was made. The same principles apply, of course, to\nothers in like status.\nnt\n:e-\nIt might be stated that I am not unaware of certain corollaries of\nbe\nthis decision which at first blush might seem incongruous but which,\ned\nupon thorough consideration, have been deemed of less than con-\nId\ntrolling importance. In the first place, the Constitution (Article II,\nni-\nsection 2, clause 3) provides that recess appointments shall expire at\nthe end of the next session of the Senate. It has been stated above\nng\nthat the adjournment of August 7 would have to be regarded as a\n:es.\n\"termination of the session\" within the meaning of the compensation\nicy\nstatute, and yet, in applying the said Constitutional provision the ad-\nn.\"\njournment of August 7 would have to be regarded merely as effecting\nm-\na recess of the second session of the 80th Congress. Suffice it to say\ning\nthat this apparent inconsistency is attributable solely to a construction\n940\nintent. of the compensation statute designed to carry out the obvious legislative\nthe\nion\nThen, there is the rather anomalous situation in that, should Judge\nect\nTamm-or others in like position-receive a new recess appointment he\nmist\nwould be precluded from receiving compensation under such appoint-\nap-\nment for the same reasons that required the conclusion in the decision\nbe\nof July 16 that Judge Harper could not be paid under his subsequent\non\"\nrecess appointment. The answer here is that new recess appointments\nthe\nare not necessary SO long as the original appointment remains valid\nIn\nunder the provisions of the Constitution. But once a new appoint-\ncess\nment is given, the prohibitory language in clause (b) of section 1761,\nappointee. Revised Statutes, operates to preclude the payment of salary to the\nin a\ng or\nYour submission is answered accordingly.\norce\nion\"\nsion\n[B-79103]\necess\ncon-\nCompensation-Postal Service-Automatic Promotions—\nService Credits\nit of\nService Under section 1 of the act of June 19, 1948, authorizing, in the case of Postal\nJune\nemployees transferred from positions for which automatic promotions\n1761,\nThe question whether an intrasession recess of the Senate constitutes a\nrecess within the meaning of Article 11, Section 2, Clause 3, of the Con-\nstitution has a checkered background. Attorney General Knox ruled in\n1901 that an adjournment of the Senate during the Christmas holidays,\nlasting from December 19, 1901, to January 6, 1902, was not a recess dur-\nAugust 3, 1979\ning which the President could make recess appointments. 23 Op. Att'y.\nGen. 599 (1901). That interpretation was overruled in 1921 by Attorney\nGeneral Daugherty, who held that the President had the power to make\n79-57 MEMORANDUM OPINION FOR THE\nappointments during a recess of the Senate lasting from August 24 to\nCOUNSEL TO THE PRESIDENT\nSeptember 21, 1921. 33 Op. Att'y. Gen. 20 (1921). The opinion concluded\nthat there was no valid distinction between a recess and an adjournment,\nand it applied the definition of a recess as described by the Senate\nConstitutional Law-Article II, Section 2,\nJudiciary Committee in its report of March 2, 1905:\nClause 3-Recess Appointments-Compensation\nthe period of time when the senate is not sitting in regular or ex-\n(5 U.S.C. § 5503)\ntraordinary session as a branch of the Congress, or in extraor-\ndinary session for the discharge of executive functions; when its\nmembers owe no duty of attendance; when its Chamber is empty;\nWe are responding to your inquiry whether the President can make ap-\nwhen, because of its absence, it can not receive communications\npointments under Article 11, Section 2, Clause 3 of the Constitution' dur-\nfrom the President or participate as a body in making appoint-\nments\ning the forthcoming recess of the Senate, that is expected to last from\n[S. Rept. 4389, 58th Cong., 3d sess., 1905; 39\nabout August 2 until September 4, 1979. It is our opinion that the Presi-\nCONGRESSIONAL RECORD 3823. [(Emphasis added.)]\ndent has this power.\nThe Attorney General, however, closed with the warning that the term\nA preliminary question is whether the President's authority to make ap-\n\"recess\" had to be given a practical construction. Hence, he suggested\npointments under this clause, commonly called \"recess appointments,\"\nthat no one \"would for a moment contend that the Senate is not in SCS-\napplies to all vacancies that exist during a recess of the Senate or whether it\nsion\" in the event of an adjournment lasting only 2 days, and he did not\nis limited to those vacancies that arise during the recess. A long line of\nbelieve that an adjournment for 5 or even 10 days constituted the recess in-\nopinions of the Attorneys General, going back to 1823 (see 41 Op. Att'y\ntended by the Constitution. He admitted that by \"the very nature of things\nGen. 463, 465 (1960) ), and which have been judicially approved (see,\nthe line of demarcation cannot be accurately drawn.\" 11c believed, never-\ntheless, that:\nAllocco V. United States, 305 F.(2d) 704 (2d Cir. 1962) ), has firmly\nestablished that the words \"may happen\" is to be read as meaning, \"may\nthe President is necessarily vested with a large, although not\nhappen to exist during the recess of the Senate,\" rather than as, \"may\nunlimited, discretion to determine when there is a real and gen-\nhappen to occur during the recess of the Senate.\" The President's power\nuine recess making it impossible for him to receive the advice and\nto make recess appointments thus is not limited to those vacancies that OC-\nconsent of the Senate. Every presumption is to be indulged in\ncurred after the Senate went into recess, but extends to all vacancies ex-\nfavor the validity of whatever action he may take. But there is a\nisting during the recess regardless of the time when they arose. It should be\npoint, necessarily hard of definition, where palpable abuse of\nnoted, however, that where a vacancy existed while the senate was in ses-\ndiscretion might subject his appointment to review.\nsion, the recipient of the recess appointment may be paid for his services\nThis opinion was cited and quoted with approval by the Comptroller\nonly if the conditions of 5 U.S.C. § 5503 have been met. We discuss this\nGeneral in 28 Comp. Gen. 30, 34 (1948), and reaffirmed by Acting At-\nmatter in more detail later in this opinion.\ntorney General Walsh in 1960 in connection with an intrasession summer\nrecess lasting from July 3, 1960, to August 15, 1960. 41 Op. Att'y Gen.\n463 (1960). Presidents frequently have made recess appointments during\n'Article II, § 2. cl. 3, provides:\nIntrasession recesses lasting for about a month.\nThe President shall have Power to fill up all Vacancies that may happen during the\nIn the winter of 1970 the Senate recessed from December 22 to\nRecess of the Senate, by granting Commissions which shall expire at the End of their\nnext Session.\nDecember 28, 1970, and the House adjourned from December 22 to\nDecember 29. 1970\nin the light of the warning in Attorney General Daughtery's opinion. In\nconnection with the Pocket Veto Clause of the Constitution, Article\nSection 7, Clause 2, the President, however, decided without awaiting our I,\nCongress can force the recess appointee to resign by rejecting his nomina\ntion. Pursuant to an annual appropriation rider, a rejection has the effec\nadvice that the 6-day adjournment of the Senate constituted an adjourn.\nof cutting off his compensation.' Finally, since, as pointed out above\nment which prevented the return of a Senate bill; hence, that he could\nKennedy V. Sampson is in conflict with an important aspect of the deci\npocket veto S. 3418, The Family Practice of Medicine Act. Senator Ken-\nsion of the Supreme Court in the Pocket Veto Case, supra, we do not\njudgment that the bill had become law without the signature of the Presi-\nnedy, who had voted in favor of the bill, thereupon sought a declaratory\nsider it the last word on the question whether the President exercise con\nduration. his pocket veto power during an intrasession adjournment of may a month's\ndent because the President had failed to return the bill within the 10-day\nperiod provided for in Article 1, Section 7, Clause 2, and that the 6-day\nShould the President decide to exercise his recess appointment\nintrasession adjournment did not prevent the return of the bill. The D.C.\nCircuit Court of Appeals held that the bill had become law. That decision\nshould be considered.\nduring the forthcoming recess of the Senate, the following technical points power\nwas based on the considerations that the 6-day adjournment had not\nA. If the vacancy existed while the Senate was in session, the recess\nprevented the return of the bill on account of its short duration, and that it\npointee can be compensated pursuant to 5 U.S.C. § 5503, only if: the ap-\nments was an intrasession adjournment and \"appropriate arrange-\nvacancy arose within 30 days of the end of the session of the Senate, if\nfor receipt of presidential messages\" had been made. Ken-\na nomination for the office was pending before the Senate at the end of or, the\nnedy V. Sampson, 511 F.(2d) 430, 442 (C.A.D.C. 1974). The decision\nsession, or if a nomination for the office was rejected by the Senate within\non an extrapolation of Wright V. United States, 302 U.S. 583 (1938), but rests is\ninconsistent with important passages in the Pocket Veto Case, 279 U.S.\n30 days before the end of the session. In addition, a nomination to fill the\n655, 683-687 (1929), which considered such \"appropriate arrangements\nvacancy referred to above must be submitted to the Senate not later than\n40 days after the beginning of the next session of the Senate. No nomina-\nfor the receipt of Presidential messages\" to be ineffective. The executive\nbranch did not, however, seek Supreme Court review of Kennedy.\nSenate. tion need be submitted where the vacancy occurred during the recess of the\nAs the result of Kennedy V. Sampson, President Ford indicated that he\nwould not invoke the pocket veto power during an intrasession\nB. is A recess appointment presupposes the existence of a If\nthere an incumbent in office the recess appointment in itself does vacancy.\nMoreover, in view of the functional affinity between the pocket veto recess. and\nfect a removal of the incumbent so as to create a vacancy. See, Peck not cf-\nrecess appointment powers, Presidents during recent years have been hesi-\nSenate. tant to make recess appointments during intrasession recesses of the\nBefore he the President can exercise his recess appointment power in such\nUnited States, 39 Ct. CI. 125 (1904); 23 Op. Atty Gen. 30, 34-35 (1900)). V.\nWe have carefully reexamined the pertinent opinions of the Attorneys\navailable, or, if not available, the incumbent must resign.\ncase must exercise his constitutional removal power to the extent it is a\nGeneral Daugherty and Acting Attorney General Walsh, which hold that\nGeneral and have concluded that we should follow the opinions of Attorney\nLARRY A. HAMMOND\nthe President is authorized to make recess appointments during a summer\nActing Assistant Attorney General\nrecess of the Senate of a month's duration. The decision in Kennedy does\nnot require a departure from those rulings. While the Pocket Veto and\nOffice of Legal Counsel\nRecess Appointment Clauses deal with similar situations, namely, the Presi-\ndent's powers while Congress is not in session, they, nevertheless, are\nidentical. The Pocket Veto Clause deals with an adjournment of the Con- not\nSee tackler VI. Jung Cartin, Canal\ngress that prevents the return of a bill, the Recess Appointment Clause\naction No. U.S. Untint Count\nwith a recess of the Senate. If the Founding Fathers had wanted the\nJanuary 8, 1979, me Federal Electron Commission\nwould clauses to cover the same situation, it is reasonable to assume that they two\nhave selected identical language for both. See, Holmes v. Jennison,\nwhenk the /mendenthemmned Stallh from\n14 Pet. 540, 570-571 (1840). Moreover, the effect of a pocket veto and of\nthis Cammon by granting a reven appeartment\nrecess appointment is different. A pocket veto is final. It kills the legisla- a\ntion absolutely and it can A be revived only by resuming the legislative proc-\nded or was request by the President\nto An. Jany. Stabler was holding her she\ness from the beginning"
}