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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Recess Appointments (2)
Box: 47
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115 Box 47 - JGR/Recess Appointments (2) - Roberts, John G.:
Files SERIES I: Subject File
U.S. Department 01 Justice
Office of Legal Counsel
Office of the
Washington, D.C. 20530
Deputy Assistant Attorney General
SEP 13 1983
MEMORANDUM FOR RICHARD A. HAUSER
Deputy Counsel to the President
Re: Recess Appointments to the Board of Directors
of the Corporation for Public Broadcasting
This responds to your request for our opinion on whether
the President is authorized to fill a vacancy in the Board of
Directors of the Corporation for Public Broadcasting (Corporation)
by means of a recess appointment. U.S. Const. art II, § 2,
cl. 3. 1/ More specifically, we have been asked whether there
is any objection to the appointment of Mr. William Lee Hanley, Jr.
to a vacancy which occurred upon the expiration last fall of
the term of Mrs. Gillian Martin Sorensen. Mrs. Sorensen has
continued to serve on the Board as a holdover member since the
expiration of her term. After a review of the Corporation's
statute and legislative history, relevant case law and prior
opinions of the Attorney General and this Office, we have
concluded that there is no legal obstacle to such a recess
appointment.
I. Recess Appointments
The President's power to make recess appointments is
a corollary of his power to appoint, with the advice and
consent of the Senate, officers of the United States.
U.S. Const. art. II, § 2, cl. 2. His power to fill vacancies
is thus coextensive with his power to fill them originally.
McCalpin V. Dana, No. 82-542 (D. D.C. October 5, 1982),
appeal docketed, No. 82-2318 (D.C. Cir. November 3, 1982),
slip op. at 4-5. Unless there is a clearly expressed legis-
The Recess Appointments Clause provides:
The President shall have Power to fill up
all Vacancies that may happen during the
Recess of the Senate, by granting
Commissions which shall expire at the End
of their next Session.
lative intent to the contrary, therefore, id. at 10, positions
held by officers of the government may be filled by the
President under the Recess Appointments Clause. 2/ The McCalpin
court quoted Staebler V. Carter, 464 F. Supp. 585, 592 (D.D.C.
1979), in which Judge Harold Green, considering recess appointments
to the Federal Election Commission, said:
The Court finds it difficult to believe
that, had the Congress intended to take the
significant step of attempting to curtail the
President's constitutional recess appointment
power, it would not have considered the matter
with more deliberation or failed to declare
its purpose with greater directness and pre-
cision.
Before reading such an unusual limit into a statute, we
believe that the courts would require a clear and explicit
statement by Congress that it intended to accomplish such an
objective.
Here, we are aware of nothing in the Corporation's
enabling act or its legislative history that evidences a
Congressional desire to restrict the President's appointment
power. Rather, there is affirmative evidence that attempts
to limit the President's authority over appointments were
rejected when the Corporation was set up in 1967. Although
the original legislation provided for a fifteen member Board
appointed by the President, the suggestion was made during
hearings that more diversity would be insured if. six of the
fifteen were elected by nine appointed members. S. Rep. No.
222, 90th Cong., 1st Sess. 13 (1967). Although the Senate
Committee adopted the suggestion, it was rejected by the
House and the original language was retained. H.R. Rep. No.
572, 90th Cong., 1st Sess. 15, 27 (1967). Thus, an attempt
to weaken the President's appointment power was rejected.
In 1981, the statute was amended to revise the Board's
makeup. The number of Board members was reduced' to ten, and two
of the ten positions were reserved for one representative each
from among the public television stations and the public radio
2/ The President's acknowledged power to appoint whomever he
wants as a member "is inconsistent with a statutory construction
that would restrict the President's power under the Recess
Appointments Clause." McCalpin, supra, slip op., at 10.
- 2 -
stations. 47 U.S.C. § 396 (c) (3) (Supp. V 1981). 3/ The
provision permitting members to holdover until their successors
were qualified, 47 U.S.C. § 396 (c) (4) (1976), was deleted.
See 47 U.S.C. § 396(c) (5) (Supp. V 1981). Finally, the
language governing vacancies was changed. Rather than being
filled "in the manner in which the original appointments were
made,' 47 U.S.C. § 396(c) (5) (1976), they are now to be
filled "in the manner consistent with this chapter.' 47
U.S.C. § 396(c)(6) (Supp. V 1981). We have not found any
legislative history discussing these last two changes.
3/ This provision provides:
(3) Of the members of the Board appointed by
the President under paragraph (1), one member
shall be selected from among individuals who
represent the licensees and permittees of
public television stations, and one member
shall be selected from among individuals who
represent the licensees and permittees of
public radio stations.
"[T] he President has full discretion in selecting the
television and radio representatives. " H.R. Rep. No.
97-208, 97th Cong., 1st Sess. 891 (1981).
A provision which was proposed but rejected at that
time would have permitted public radio and television stations
to submit a list of qualified individuals to the Board, which
would then submit the list' to the President within 45 days.
One purpose was "to provide for the expeditious appointment
of individuals to fill Board vacancies. Too often in the
past, the President has neglected to fill openings on the
Board -- to the detriment of the Board's ability to carry out
its work." H.R. Rep. No. 97-82, 97th Cong., 1st Sess. 19
(1981). See also Public Telecommunications Act of 1981:
Hearings on S. 720 Before the Subcomm. on Communications of
the Senate Comm. on Commerce, Science and Transportation, 97th
Cong., 1st Sess. 23 (1981). Although the proposal was not
adopted, the provision does reflect a concern that the President
fill vacancies promptly, and perhaps a recognition of previous
shortcomings in this regard. Because many vacancies are
created by death or resignation, elimination of the ability
to make recess appointments would be somewhat inconsistent
with a desire to have vacancies filled expeditiously.
- 3 -
The effect, if any, of the language change regarding
the filling of vacancies would appear to be in the direction
of more, not less, Presidential authority. The court in
Staebler, supra, declined to read the requirement that vacancies
be filled in the same manner as the original appointment as
a limit on the President's power to make recess appointments.
464 F. Supp. at 588-591. See also McCalpin, supra, slip op.
at 19-20. The more ambiguous language now covering vacancies
in the Corporation's Board permits a similar interpretation,
one which is consistent with the Constitution's demands
and thereby avoids raising doubts about the constitutionality
of a statutory scheme in which individuals are given
substantial authority over a major federal program. McCalpin,
supra, at 16.
Because we do not believe that Congress intended to
restrict the President's power to make recess appointments,
the central question for us is whether the members of the
Board of Directors are "officers of the United States."
The ten members of the Board of Directors of the
Corporation are appointed by the President, with the advice
and consent of the Senate. 47 U.S.C. § 396 (c) (1) (Supp. V
1981). We believe that this unrestricted power of appointment
by the President is based on the Appointments Clause and that
the Board members are "officers" in the constitutional sense.
They exercise "significant authority pursuant to the laws of
the United States
including receipt and expenditure
of appropriated funds. Buckley V. Valeo, 424 U.S. 1, 126
(1976). That Congress recites that an organization is "non-
governmental" or "private" does not change this analysis. 4/
4/ Letter to Mr. Richard Garon from Robert B. Shanks, Deputy
Assistant Attorney General, Office of Legal Counsel, June 9,
1983 (National Endowment for Democracy).
- 4 -
The Supreme Court's test is whether an individual exercises
significant statutory authority; it is clear that the directors
of the Corporation do exercise such significant statutory
authority. Among other things, the Corporation's authorizing
statute permits the Corporation to make contracts, fund
grants, underwrite public television and radio stations, establish
and maintain a national library and conduct training programs.
47 U.S.C. § 396 (g) (2) (Supp. V 1981). 5/
5/ We are aware that some have argued that the board members
are not officers, and that the recess appointments power
is therefore not available. Memorandum for Paul A. Mutino,
General Counsel, Corporation for Public Broadcasting from
James L. McHugh, Jr., Steptoe and Johnson, January 19, 1981,
at 2. "Thus, the sole source of Presidential power to appoint
to the CPB Board is the statute itself, which does not provide
for recess appointments. II Id. This Office stated, in a
short opinion in 1973, though, that while the directors did
not appear to be officers, we still believed that the President
could make recess appointments to the Corporation. Memorandum
for the Hon. John W. Dean, III, Counsel to the President from
Roger C. Crampton, Assistant Attorney General, Office of
Legal Counsel, January 3, 1973.
Our memorandum was written prior to the Supreme Court's
decision in Buckley V. Valeo, 424 U.S. 1 (1976) and does not
contain any analysis of why the directors are not officers in
the constitutional sense. We must depart from its conclusion
that the directors are not officers, based on the intervening
Buckley decision and our present understanding of the Corpor-
ation's functions. Because of the different premise from
which we now begin our analysis, it is unnecessary for us to
discuss the reasoning underlying the conclusion of our 1973
memorandum.
- 5 -
That the Board members "cannot 'be deemed officers
or employees ... by reason of such membership does
not preclude LSC directors from being considered 'officers of
the United States' by reason of the Constitution." McCalpin,
supra, slip op. at 11-12. The court did not read the
provision, nearly identical to that found in the Corporation's,
47 U.S.C. $396 (d) (2), out of the statute. Rather, it viewed
it as defining
the entitlements, obligations, and liabilities
of [members] under various federal statutes and
regulations
....
[D]efendants correctly contend
that the phrase "employee of the United States"
has no constitutional significance. It is
improbable that Congress intended for one segment
of a statutory clause to be defined in its
constitutional sense while the remaining segment
was to have only a statutory meaning. By using
both the terms "officers" and "employees," it is
likely that Congress was demonstrating its concern
that the [statutory] rights and duties of officers
or employees of the United States would not attach
to [members].
Id. at 12-13. The court went on to note that the Legal Services
Corporation's status as a non-governmental corporation did not
preclude its directors from being officers in the constitutional
sense. Id. That Congress wishes to insulate such members
from political influence, which it has done by restricting
the President's removal power, id. at 16, 7/ is "a check on the
6/ While. the 1981 amendment added the word "officers" to 47
U.S.C. § 396 (d) (2). See n.4 and text. The addition of the
word "officer" makes the language even more similar to that
discussed in McCalpin.
7/ See also Memorandum for Fred F. Fielding, Counsel to the
President, from Larry L. Simms, Acting Assistant Attorney
General, Office of Legal Counsel, February 8, 1981 (removal
of recess appointments to the Corporation).
- 6 -
political influence of the Executive Branch that has been
frequently utilized," but does not influence whether someone
is an officer. Id. 8/
Thus, we believe that members of the Corporation's
Board of Directors are "officers of the United States" whose
positions the President may fill using his recess appointments
power.
II. Holdover Provision
We understand that the President gave the recess
appointment to Mr. Hanley in order to fill the vacancy
created by the expiration of the term of Mrs. Gillian Martin
Sorensen. Mrs. Sorensen apparently claimed the right to serve
under the holdover provision of D.C. Code $29-519 (c), which
has been made applicable to the Corporation by 47 U.S.C. §
396 (1), to the extent consistent with that section. 9/ It
has been firmly established that holdover service comes to an
end when the President makes a. recess appointment to the
position in which an incumbent holds over. Staebler, supra;
McCalpin, supra. Thus, because the President had the
authority to give a recess appontment to Mr. Hanley, as we
have shown above, the President's recess appointment terminated
any right Mrs. Sorensen previously might have had to continue
to serve as a director of the Corporation.
The historical record is replete with examples of
recess appointments to so-called independent agencies. See
Staebler V. Carter, 464 F. Supp. 585, 587 ("at least 116"
examples in recent decades). President Carter made
recess appointments to the Corporation's Board in January,
1981. Memorandum for Fred Fielding, Counsel to the
President from Larry L. Simms, Acting Assistant Attorney
General, Office of Legal Counsel, February 8, 1981. Other
examples include recess appointments to the Legal Services
Corporation, see McCalpin, supra, and to the Communications
Satellite Corporation. 42 Op. Att'y Gen. 165, 165 n.2 (1962).
9 We see no inconsistency between 47 U.S.C. § 396 and
D.C. Code § 29-519 (c). 49 U.S.C. § 396 (c) (4) originally
contained a holdover provision. That provision was
omitted in a 1981 revision of § 396. It is not clear
whether the omission might have been due to a determination
that the D.C. Code section rendered the statutory provision
unnecessary. There is some evidence in the legislative history
with regard to another provision, see n.3, supra, that
Congress was concerned about the speed with which the
President was filling vacancies. It may be that the deletion
was intended to encourage the President to fill vacancies
even more quickly by eliminating the grace period available
with a holdover provision.
- 7 -
IV. Conclusion
We believe that the President has the authority to make
recess appointments to the Board of Directors of the
Corporation for Public Broadcasting. We further conclude
that the recess appointment of Mr. William Lee Hanley, Jr. was
legally permissible, and that Mr. Hanley therefore replaced
Mrs. Gillian Martin Sorensen, whose holdover status was
terminated thereby.
Please let us know if we can be of further assistance.
Ralph W. Tarr
Deputy Assistant Attorney General
Office of Legal Counsel
- 8 -
RETURN TO:
EXECUTIVE CLERK
ROOM -
OPINION OF THE ATTORNEY GENERAL OF THE
UNITED STATES
RECESS APPOINTMENTS
The cies President which is authorized to make recess appointments to fill vacan-
occurred while the Senate was in session.
The temporary President is authorized to make recess appointments
The as reconvening the "next of the Senate on August 8, 1960, is not August to be 8, 1960.
adjournment of the Senate from July 3 to during the
section 2, Session" of the Senate within the meaning of regarded
second clause 3 of the Constitution, but as the continuation Article II,
appointed session of the 86th Congress. The commissions of the of the
end of that during this adjournment therefore will continue officers
sine die session of the Senate which follows the final adjournment until the
The nation adjournment of of the Senate on July 3, 1960, constituted
of the second session of the 86th Congress.
56, so that the session of the Senate" within the meaning of the "termi-
ate on persons whose nominations were pending before 5 U.S.C.
period of that day and who receive recess appointments the Sen-
offices, adjournment are entitled to the salaries attached during the
this right provided that the other conditions of 5 U.S.C. 56 to their
ment of will not be terminated by any temporary or final are met; adjourn- and
the second session of the 86th Congress.
The mit terminal to the proviso of 5 U.S.C. 56 may require that the
August Senate not later than forty days after it President sub-
cess of the 8, 1960, the nominations of those officers who, reconvenes on
isted Senate, received appointments to fill vacancies during which the ex- re-
while the Senate was in session.
THE PRESIDENT.
JULY 14, 1960.
My oral DEAR MR. PRESIDENT: I have the honor to comply with
are lating to your power under the Constitution to make what re-
your request for my opinion on several questions
commonly designated as recess appointments.
Resolution 112, 86th Cong., 2d sess., which reads
On July 3, 1960, the Senate adopted Senate Concurrent
o'clock July 3, 1960, the Senate shall stand adjourned on Sunday,
"That when the two Houses shall adjourn
Representatives Vol. shall stand adjourned until 12 o'clock noon of
noon on Monday, August 8, 1960, and the House until 12
41, Op. No. 80.
562021-60-1
(1)
2
July 5, 1960), p. 14690.)
on Monday, August 15, 1960." (106 Cong. Rec. (Daily Ed.,
providing: At the same time, the Senate agreed to a resolution
"* * * That notwithstanding the adjournment of the Sen-
of the provisions of rule XXXVIII of the Standing Rules
and ate under Senate Concurrent Resolution 112, as amended,
and the Senate, the status quo of nominations now pending
adjournment shall be preserved."
not finally acted upon at the time of taking such
The questions now presented are, first, whether are
section authorized to make appointments pursuant to Article you II,
2, clause 3 of the Constitution, during the adjourn-
ticular ment of the Senate from July 3 to August 8, 1960, in
the whether you may appoint to vacancies, existing par- at
time when the Senate was in session, those persons whom
you and had nominated and whose nominations were pending
nations 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,
during the adjournment of the Senate, especially appointments of those
at whose the nominations were pending and not finally acted
whether time of the adjournment on July 3, 1960; and, finally, upon
ments 56. may be paid pursuant to the provisions of 5 U.S.C.
and how long the persons receiving such appoint-
that For the reasons set forth in detail, I conclude, first,
adjournment of the Senate, and that this power extends
you have the power to make appointments during this
vacancies which existed at the time the Senate in to
not sion and to persons whose nominations were pending was ses- but
1960; second, that the commissions of the persons so 3,
finally acted upon when the Senate adjourned on July
pointed will expire at the end of the session of the Senate ap-
part:
1 Rule "6. XXXVIII * if of the Standing Rules of the Senate provides in
of thirty taking days, such all nominations pending and not finally acted a recess for more than
the Senate shall adjourn or take pertinent
the President, adjournment or recess shall be returned by upon the at the time
made to the Senate and by shall the President." not again be considered unless they shall Secretary again be to
3
following the adjournment sine die of the second session of
the 86th Congress, presumably, the end of the first session
of the 87th Congress; third, that it would be advisable to
submit to the Senate, when it reconvenes at the end of the
adjournment, nominations for all persons who received ap-
pointments between July 3 and August 8, 1960; and, finally,
that, provided compliance is made with the provisions of
5 U.S.C. 56, any such appointee can be paid out of the
Treasury for the duration of his constitutional term or until
the Senate has voted not to confirm his nomination.
I.
Article II, section 2, clause 3 of the Constitution provides:
"The President shall have Power to fill up all Vacancies
that may happen during the Recess of the Senate, by grant-
Session
ing Commissions which shall expire at the End of their next
It has been settled by a long and unanimous line of opin-
ions of the Attorneys General concurred in by the courts that
the President's power to make such appointments is not
limited to those which "happen to occur" during the recess
of the Senate but that it extends to those which "happen to
exist" during that period ; hence, that the President has the
constitutional power to fill vacancies regardless of the time
when they first arose. 1 Op. 631 (1823) ; 2 Op. 525 (1832)
3 Op. 673 (1841) ; 7 Op. 186 (1855) ; 10 Op. 356 (1862) 12 ;
207 Op. 32 (1866) ; 12 Op. 455 (1868) ; 14 Op. 562 (1875) ; 15 Op. ;
(1877) ; 16 Op. 522 (1880) ; 16 Op. 538 (1880) ; 17 Op. 530
(1883) ; 18 Op. 28 (1884) ; 18 Op. 29 (1884) ; 19 Op. 261
(1889) ; 26 Op. 234 (1907) ; 30 Op. 314 (1914) ; 33 Op. 20, 22-
cuit 1880), and the opinion of Mr. Justice Woods, sitting as Cir-
23 (1921) ; see also In Re Farrow, 3 Fed. 112 (C.C.N.D. Ga.,
Tenn., 1886).
Justice, in In Re Yancey, 28 Fed. 445, 450 (C.C.W.D.
The Congress, too, recognizes the President's power to make
appointments during a recess of the Senate to fill a
U.S.C. 56, which originally prohibited the payment of
which existed while the Senate was in session. R.S. vacancy 1761, 5
propriated funds as salary to a person who received a recess ap-
a See, e.g., 52 Cong. Rec. 1369-1370 (1915) ; 67 Cong. Rec. 262-264 (1925).
4
appointment if the vacancy existed while the Senate was in
session implicitly assumed that the power existed, but sought
to render it ineffective by prohibiting the payment of the
salary to the person SO appointed.3 In 1940, however, the
Congress amended R.S. 1761, 5 U.S.C. 56 (act of July 11,
1940, C. 580, 54 Stat. 751), and permitted the payment of
salaries to certain classes of recess appointees even where the
vacancies occurred while the Senate was in session.⁴ In view
of this congressional acquiescence, you have, without any
doubt, the constitutional power to make recess appointments
to fill any vacancies which existed while the Senate was in
disession.
Next, I reach the question of whether the adjournment
of the Senate, pursuant to Senate Concurrent Resolution 112
of July 3, 1960, from that day to August 8, 1960, is a "re-
cess of the Senate" within the meaning of Article II, sec-
tion 2, clause 3 of the Constitution. In other words, does
the word "recess" relate only to a formal termination of a
session of the Senate, or does it refer as well to a temporary
adjournment of the Senate, protracted enough to prevent
that body from performing its functions of advising and
consenting to executive nominations? It is my opinion,
which finds its support in executive as well as in legislative
and judicial authority, that the latter interpretation is the
correct one.
In 1921, the Attorney General ruled that the President has
the power to make recess appointments during an adjourn-
ment of the Senate for four weeks. 33 Op. 20 (1921). In his
opinion, the test for the determination of whether an ad-
journment constitutes a recess in the constitutional sense is
not the technical nature of the adjournment resolution, i.e.,
whether it is to a day certain (temporary) or sine die (ter-
minating the session), but its practical effect: viz., whether
or not the Senate is capable of exercising its constitutional
function of advising and consenting to executive nomina-
3 Cf. the memorandum submitted by Senator Butler on March 16, 1925, 67
Cong. Rec. 263, 264 (1925).
& For an analysis of 5 U.S.C. 56, see II, infra. The legislative history of
the 1940 amendment of 5 U.S.C. 56 does not contain any suggestion that the
President lacks the power under the Constitution to make recess appointments
when the vacancies existed while the Senate was in session. Cf. S. Rept. 1079,
76th Cong., 1st sess., and H. Rept. 2646, 76th Cong., 3d sess.
5
tions. Relying on the classic expositions of Attorneys Gen-
eral Wirt and Stanbery in 1 Op. 631 (1823) and 12 Op.
32 (1866), the Attorney General explained the purposes the
President's recess appointment power is designed to serve:
viz., to enable the President, at a time when the advice and
consent of the Senate cannot be obtained immediately, to fill
those vacancies which, in the public interest, may not be left
open for any protracted period. He pointed out that the
existence of a vacancy is no less adverse to the public interest
because it occurs after a temporary rather than after a final
adjournment of a session of the Congress, and "could not
bring himself to believe that the framers of the Constitution
ever intended" that the President's essential power to make
recess appointments could be nullified because the Senate
chose to adjourn to a specified day, rather than sine die (33
Op. 20, 23 (1921))
The opinion, however, relied not only on earlier opinions
of the Attorneys General; it was amply supported by judi-
cial and legislative authority. In Gould V. United States,
19 C. Cls. 593, 595 (1884), the Court of Claims had held
that the President possessed the power to make recess ap-
pointments during a temporary adjournment of the Senate
lasting from July 20 to November 21, 1867. The Attorney
General, furthermore, relied heavily on a "most significant"
report of the Senate Committee on the Judiciary, dated
March 2, 1905 (S. Rept. 4389, 58th Cong., 3d sess.; 39 Cong.
Rec. 3823-3824 (1905) This report, construing the very
constitutional clause here involved, interprets the term "re-
cess" as "the period of time when the Senate is not sitting in
regular or extraordinary session as a branch of the Congress,
or in extraordinary session for the discharge of executive
functions; when its members owe no duty of attendance;
when its Chamber is empty; when, because of its absence, it
cannot receive communications from the President or partic-
ipate as a body in making appointments."
The opinion therefore concluded that the adjournment of
the Congress from August 24 to September 21, 1921, a
period shorter than the present recess, constituted a recess
day
6
of the Senate during which the President could fill vacancies
under Article II, section 2, clause 3 of the Constitution.⁵
I fully agree with the reasoning and with the conclusions
reached in that opinion. Moreover, this ruling since has
been buttressed by a decision of the Comptroller General, and
by the judgment of the Supreme Court in an analogous field.
The decision of the Comptroller General (28 Comp. Gen.
30 (1948) ) arose in the following circumstances:
President Truman submitted to the Senate the nominations
In 1948, during the second session of the 80th Congress,
of three judges. When the Senate, on June 20, 1948, ad-
journed to December 31, 1948, unless sooner called back into
session by the congressional leadership, it had not acted on
those nominations. On June 22, 1948, the President issued
from the Director of the Administrative Office of the United
recess appointments to the three judges.⁶ Upon inquiry
States Courts as to whether these judges could be paid, the
Comptroller General ruled, largely in reliance on 33 Op. A. G.
20,' that an extended adjournment of the Senate is a "re-
cess" in the constitutional sense, during which the President
may fill vacancies. Specifically, the Comptroller General
said ( (28 Comp. Gen. 30, at 34 (1948) :
"What is a 'recess' within the meaning of that provision
[Art II, section 2, clause 3 of the Constitution] ? Is it re-
stricted to the interval between the final adjournment of one
session of Congress and the commencement of the next suc-
ceeding session; or does it refer also to the period following
an adjournment, within a session, to a specified date as here?
It appears to be the accepted view-at least since an opinion
of the Attorney General dated August 27, 1921, reported in
33 Op. Atty. Gen. 20-that a period such as last referred to
made." is a recess during which an appointment properly may be
tion of holiday. It concluded that the outcome hinged on the or for
a problems short presented by the adjournment of the Senate for a few days, the
5 In its final part (33 Op. 20, 24-25 (1921)), the opinion discussed
President whether the Senate was present to receive communications practical ques-
to and that it was largely a matter of sound Presidential from the
the determine whether or not there was a real recess making it impossible discretion for
o Senate to give its advice and consent to executive appointments.
Attorney General adhered to 33 Op. 20.
These appointments, of course, would not have been made had not the
SO that he incorporated it in Its entirety as a part of his decision. General
T important The Comptroller General considered that opinion of the Attorney
7
Considering that the Comptroller General is an officer in
the legislative branch, and charged with the protection of the
fiscal prerogatives of the Congress, his full concurrence in
the position taken by the Attorney General in 33 Op. 20 is
of signal significance.
Of equal importance is the decision of the Supreme Court
in the Pocket Veto case, 279 U.S. 655 (1929), which, in a re-
lated field, uses the same argument as the Attorney General
in 33 Op. 20: vis., that the Presidential powers arising in the
event of an adjournment of the Congress are to be determined,
not by the form of the adjournment, but by the ability of the
legislature to perform its functions. Article I, section 7,
clause 2 of the Constitution provides:
"If any Bill shall not be returned by the President within
ten Days (Sundays excepted) after it shall have been pre-
sented to him, the Same shall be a Law, in like Manner as if
he had signed it, unless the Congress by their Adjournment
prevent its Return, in which Case it shall not be a Law."
The issue presented in the Pocket Veto case, supra, was
whether an adjournment of the Senate from July 3 to No-
vember 10, 1926, was an adjournment of the Senate "pre-
venting" the return of a bill which had originated in that
body.
The Supreme Court, in analogy to the Attorney General in
33 Op. 20, ruled that the test is not whether an adjournment
is a final one terminating a session, but "whether it is one
that 'prevents' the President from returning the bill to the
House in which it originated within the time allowed.' 8
Applying the reasoning of the Pocket Veto case, supra, to the
situation at hand, it follows that you have the power to grant
recess appointments during the present recess of the Senate,
because that recess "prevents" it from advising and consent-
ing to executive nominations.
The commissions issued by you pursuant to Article II, sec-
tion 2, clause 3 of the Constitution expire "at the End of their
[the Senate's] next session!" This "End of their next Ses-
8 279 U.S. 655, 680 (1929). Wright V. United States, 302 U.S. 583 (1938),
held that a three-day adjournment of the Senate while the House of Repre-
sentatives was in session, and during which a veto message of the President
was accepted by the Secretary of the Senate, did not amount to an adjourn-
ment preventing the return of the bill. For a discussion of the Pocket Veto
problem, see also 40 Op. A.G. 274 (1943).
8
sion" is not the end of the meeting of the Senate, beginning
when the Senate returns from its adjournment on August 8,
1960, but the end of the session following the final adjourn-
ment of the second session of the 86th Congress, presumably,
the first session of the 87th Congress.
The adjournment of the Congress on July 3, 1960, pursu-
ant to Senate Concurrent Resolution 112 was not sine die.
Hence, it merely had the effect of a temporary "dispersion"
of the Congress. 20 Op. A.G. 503, 507 (1892). It did not,
however, terminate the second session of the 86th Congress.
5 Hinds' Precedents of the House of Representatives, secs.
6676, 6677 28 Comp. Gen. 30, 33-34 (1948) ; Ashley V. Keith
Oil Corporation, 7 F.R.D. 589 (D.C. Mass., 1947). Hence,
when the Congress reconvenes in August it will not begin a
new session but merely continue the session which began on
January 6, 1960. Ashley V. Keith Oil Corporation, supra;
28 Comp. Gen. 121, 123-126 (1948) ; see also Memorandum of
the Federal Laro Section of the Library of Congress to the
Senate Committee on the Judiciary, dated November 5, 1947,
93 Cong. Rec. 10576-77. It follows that the "next session"
referred to in Article II, section 2, clause 3 of the Constitu-
tion is the session following the adjournment sine die of the
second session of the 86th Congress, i.e., either the first ses-
sion of the 87th Congress or a special session called by the
President following the final adjournment of the second ses-
sion of the 86th Congress.
This conclusion is fully supported by a ruling of the
Comptroller General relating to the previously discussed
recess appointments made by President Truman on June 22,
1948. After the second session of the 80th Congress had
adjourned from June 20 to December 30, 1948, and a num-
ber of recess appointments had been granted, the President
notified the Congress on July 15, 1948, to convene on July 26,
1948. Proclamation No. 2796, 13 F.R. 4057; 28 Comp.
Gen. 121, 124 (1948). The Congress met accordingly, and
A special session called by the President during a temporary adjournment
of the second session of the 86th Congress would merely constitute a continua-
tion of that session. Ashley V. Keith on Corporation, 7 F.R.D. 589, 591-592
(D.C. Mass., 1947) and the authorities there cited; Memorandum of the
Federal Law Section of the Library of Congress to the Senate Committee
on the Judiciary, dated November 5, 1947, 93 Cong. Rec. 10576-77 (1947) ;
28 Comp. Gen. 121, 125-126.
9
again adjourned on August 7, 1948, until December 31, 1948
(28 Comp. Gen. 121, 122). The Comptroller General ruled
"that the reconvening of the 80th Congress on July 26, 1948,
pursuant to the President's proclamation of July 15,
1948 * * * merely constituted a continuation of the second
session" (28 Comp. Gen., at 126) ; hence, that "the convening
of the Congress during the period July 26 to August 7,
1948 * * * was not the 'next session of the Senate' within
the meaning of Article II, section 2, clause 3 of the Constitu-
tion, and that Judge Tamm's commission to office did not
expire on August 7, 1948, when the second session of the
80th Congress adjourned
*
*
*"
(28 Comp. Gen., at 127) 10
This year the Congress will reconvene, not pursuant to
your call, but according to its own adjournment resolution.
In these circumstances, the return of the Congress in August
clearly is a continuation of the second session of the 86th
Congress and not the next session, the termination of which
would cause the recess appointments to expire. Barring
an adjournment sine die of the 86th Congress and the call-
ing of a special session, the recess commissions granted
during the present recess of the Senate will terminate at
the end of the first session of the 87th Congress. Officers
who serve at your pleasure, of course, may be removed by
you at any time.
You also have inquired whether you should submit to the
Senate, when it reconvenes in August, nominations for those
persons to whom you have given recess appointments dur-
ing this adjournment of the Senate, although their nomi-
nations were pending but not finally acted upon at the time
the Senate adjourned. This question is SO intimately tied
up with the pay status of the recess appointees that I shall
answer it in that context.
II.
The circumstance that you have the power to make
Fay
appointments during this adjournment of the Senate and
that the commissions SO granted-barring unforeseen cir-
10 The Attorney General did not publish a formal opinion in
was in full agreement with that ruling.
August 11, 1948, and the files of this Department, however, indicate that he on
with this incident A press release issued by Attorney General connection Clark
562021-60-2
10
cumstances-will last until the adjournment sine die of the
first session of the 87th Congress, however, does not mean
necessarily that your appointees can be paid out of appro-
priated funds.¹¹ The Congress has limited severely the use
of such moneys for the payment of the salaries of certain
classes of recess appointees.
R.S. 1761, as amended by the act of July 11, 1940, c. 580,
54 Stat. 751, 5 U.S.C. 56, 12 provides:
"No money shall be paid from the Treasury, as salary, to
any person appointed during the recess of the Senate, to fill
a vacancy in any existing office, if the vacancy existed while
the Senate was in session and was by law required to be filled
by and with the advice and consent of the Senate, until such
appointee has been confirmed by the Senate. The provisions
of this section shall not apply (a) if the vacancy arose within
thirty days prior to the termination of the session of the Sen-
ate; or (b) if, at the time of the termination of the session
of the Senate, a nomination for such office, other than the
nomination of a person appointed during the preceding recess
of the Senate, was pending before the Senate for its advice
and consent; or (c) if a nomination for such office was re-
jected by the Senate within thirty days prior to the termina-
tion of the session and a person other than the one whose
nomination was rejected thereafter receives a recess com-
mission Provided, That a nomination to fill such vacancy
under (a), (b), or (c) of this section, shall be submitted to the
Senate not later than forty days after the commencement of
the next succeeding session of the Senate."
The import of this complicated provision, briefly, is as
follows: If the President makes a recess appointment to fill
a vacancy which existed while the Senate was in session, the
Pay
appointee may be paid prior to his confirmation by the Senate
in three contingencies:
a. If the vacancy arose within thirty days prior to the
termination of the session of the Senate;
b. If at the time of the termination of the session of the
Senate a nomination for this office was pending before the
ii In this opinion I shall use the term "paid" in the sense. of being paid out
of appropriated funds in the regular course of business, i.e., prior to con-
firmation by the Senate, and without recourse to the Court of Claims.
12 Hereafter usually referred to as 5 U.S.C. 56.
11
Senate, except where the nominee is a person appointed dur-
ing the preceding recess of the Senate; 13 or
C. If a nomination for the office was rejected by the Senate
within thirty days prior to the termination of the session,
except where the person who receives the recess appointment
is the person whose nomination was rejected.
The terminal proviso of 5 U.S.C. 56 requires in addition
that a nomination to fill a vacancy in those three contingen-
cies must be submitted to the Senate not later than forty days
Senate. after the commencement of the next succeeding session of the
The statute thus permits the payment of salaries to persons
receiving recess appointments to vacancies, which existed
while the Senate was in session, in three situations, all of
which are predicated on "the termination of the session of the
Senate." Here again, the question arises whether this term
must be interpreted technically-limited to the final adjourn-
ment of a session-or whether it permits the payment of
salaries to those who receive a recess appointment after a
temporary adjournment of the Senate.
The Comptroller General has ruled that "the term 'ter-
mination of the session' [has] * * * been used by the Con-
gress in the sense of any adjournment,14 whether final or not,
in contemplation of a recess covering a substantial period of
time" (28 Comp. Gen. 30, 37). Considering that the Comp-
troller General is the officer primarily charged with the
administration and enforcement of 5 U.S.C. 56, his interpre-
tation of that statute is of great weight. Independent re-
examination of the subject matter, moreover, causes me to
concur fully in his conclusions based largely on the purposes
which the act of July 11, 1940, 54 Stat. 751, amending
5 U.S.C. 56, was designed to accomplish.
Prior to the enactment of the 1940 amendment, 5 U.S.C. 56
provided that if a vacancy existed while the Senate was in
session a person receiving a recess appointment to fill that
vacancy could not be paid from the Treasury until he had
13 36 Comp. Gen. 414 (1956) interprets clause (b), in analogy to clause (c),
as if it read : If at the time of the termination of the session of the Senate
a nomination for this office was pending before the Senate, except where the
preceding recess of the Senate.
person who receives the recess appointment is a person appointed during the
14 Emphasis supplied.
12
been confirmed by the Senate. This statute caused serious
hardship, especially when a vacancy occurred shortly before
the Senate adjourned, or where a session terminated before
the Senate had acted on nominations pending before it (H.
Rept. 2646, 76th Cong., 3d sess. ; see also letter from Attorney
General Murphy to Senator Ashurst, dated July 14, 1939,
S. Rept. 1079, 76th Cong., 1st sess., p. 2). The inability to
pay recess appointees in those circumstances had the effect
of either compelling the President to leave the vacancy un-
filled until the next session of the Senate, or causing the ap-
pointee to undergo the financial sacrifice of having to serve,
possibly for a considerable period of time, without knowing
whether he could be paid (see letter of Attorney General
Murphy to Senator Ashurst, supra).
The purpose of the 1940 amendment was "to render the
existing prohibition on the payment of salaries more flexible"
(H. Rept. 2646, 76th Cong., 3d sess., p. 1) and to alleviate
the "serious injustice" caused by the law as it then stood (S.
Rept. 1079, 76th Cong., 1st sess., p. 2). Thus, 5 U.S.C. 56,
as it stands now, is a remedial statute designed to permit the
immediate payment of recess appointees, provided the Presi-
dent complies in good faith with the statutory conditions.15
The "serious injustice" caused by the inability to pay a
recess appointee, of course, is just as great and undesirable in
the case where the appointment was made after a temporary
recess of the Senate as where the commission had been
granted after a final adjournment. To restrict the words
"termination of the session" to a final adjournment, there-
fore, would be "inconsistent with the obvious purpose of the
law" 28 Comp. Gen. 30, 37.
It follows that a person receiving a recess appointment 7
during a prolonged adjournment of the Senate may be paid,
if the conditions of 5 U.S.C. 56 initially have been met, i.e.,
if the vacancy arose within thirty days of the adjournment;
or if a nomination was pending before the Senate at the time
of the adjournment, except where the recess appointee has
served under an earlier recess appointment; 16 or if the Senate
15 For that reason, the Comptroller General consistently has interpreted the
statute liberally ; see, e.g., 28 Comp. Gen. 30, 36-37 ; 238, 240-241 ; 36 Comp.
Gen. 444, 446.
18 Cf. fn. 13, supra.
13
had rejected a nomination within thirty days prior to its ad-
journment, except where the recess appointee is the person
whose nomination had been rejected.
The recess appointee's right to be paid will continue through-
out the constitutional term of his office, except for two con-
tingencies: First, if the Senate should vote not to confirm
him, section 204 of the annual General Government Matters
Appropriation Act (Cf. July 8, 1959, 73 Stat. 166) would
preclude the further payment of salary out of appropriated
funds; second, the appointee's pay status may be cut off as
the result of noncompliance with the terminal proviso of
5 U.S.C. 56, i.e., in the case of a failure to submit to the Senate
a nomination to fill the vacancy within forty days after "the
commencement of the next succeeding session of the Senate.
The adjournment of the Senate after it reconvenes in August,
paid.¹⁷ however, will not jeopardize the recess appointee's right to be
III.
When the Senate reconvenes in August 1960, you should
submit to it nominations for all persons who received
pointments during the adjournment of the Senate, including ap-
those whose nominations were pending but not finally acted
upon when the Congress adjourned. This resubmission is
desirable in order to advise the Senate of the fact that recess
appointments have been made, and is probably required in
order to protect the pay status of the recess appointees.
Ordinarily, when the Senate adjourns for more than thirty
days all nominations pending and not finally acted upon at
the time of the adjournment are returned to the President
and may not be considered again unless resubmitted by the
President (Rule XXXVIII (6) of the Standing Rules of the
1960, it resolved that-
Senate). However, when the Senate adjourned on July 3,
**
*
*
finally acted upon at the time of
the status quo of nominations now pending and not
*
*
*
adjournment shall
P. 14690.)
be preserved." (106 Cong. Rec. (Daily Ed., July 5, 1960),
IT These two points will be discussed in Part III, infra.
14
The Senate thus has waived Rule XXXVIII with the
result that nominations pending before it on July 3, 1960,
but not finally acted upon at that time, will not be returned
to you. And, when the Senate reconvenes in August, those
nominations will be before it, and may be considered in the
stage in which they were at the time of adjournment. The
resolution thus avoids much duplication of effort, especially
in those instances where hearings already have been held on
a nomination.
I do not read the resolution, in particular the statement
that the status quo of all pending nominations not finally
acted upon shall be preserved, as purporting to freeze those
nominations, and to prevent the President from giving recess
appointments to those whose nominations were pending but
not finally acted upon at the time of the adjournment of the
Senate. Any attempt of the Senate to curtail the Presi-
dent's constitutional power to make recess appointments
would raise the most serious constitutional questions. And
where, as here, the resolution not only fails to reveal any such
purpose, but rather obviously was designed to obviate need-
less work, I refuse to attribute to the Senate any intent to
interfere with the President's constitutional powers and
responsibilities.
18
In spite of the suspension of Rule XXXVIII (6) of the
Standing Rules of the Senate, I recommend strongly that
when the Senate reconvenes in August you should submit to
it new nominations for those persons whose nominations
were pending on July 3, 1960, and who have received ap-
pointments during the adjournment of the Senate. The
submission of the new nominations would not constitute a
18 The circumstance that the nominations remain pending before the Senate
during its recess does not affect the pay status of the recess appointees. 5
U.S.C. 56 does not contain any prohibition against the payment of the salaries
to appointees whose nominations are pending before the Senate after its ad-
journment Clause (b), it is true, refers to the situation that a nomination
is pending before the Senate at the time of the termination of the session of
the Senate. There is, however, nothing in the spirit and the language of 5
U.S.C. 56 to the effect that clause (b) is inapplicable where this nomination
remains pending following the termination of the session. Moreover, 5 U.S.C.
56 has been interpreted to the effect that the question of whether a person
may be paid is to be determined as of the time of the adjournment of the
Senate preceding the recess appointment and not as of a later time (28
troller General's ruling, infra).
Comp. Gen. 121, 127-129, and see the discussion of that part of the Comp-
15
meaningless duplication of effort, nor jeopardize the pay
status of the recess appointees. The failure to do so, how-
ever, may constitute a violation of the terminal proviso of
5 U.S.C. 56 and delay, if not entirely prevent, the payment
of salaries to the appointees.
First. Nominations submitted to the Senate customarily
indicate the circumstance, where applicable, that a nominee
is serving under a recess appointment. The preadjourn-
ment nominations of those who thereafter received recess ap-
pointments, of course, do not contain that information. The
Senate has a substantial interest in being advised of the fact
that a nominee is serving under such an appointment. Such
appointment fills the position temporarily, and confirmation
therefore is no longer urgent. This may be an important
consideration to the Senate when it returns for what is hoped
to be a short session. On the other hand, if the Senate is
strongly opposed to an appointee it may vote to deny con-
firmation, and thus, for all practical purposes force him to
resign by cutting off his pay. The submission of a new
nomination for a recess appointee after the return of the
Senate, accordingly, serves a distinct purpose.
Second. The terminal proviso of 5 U.S.C. 56 requires the
submission of the nomination of a person who received a
recess appointment "to the Senate not later than forty days
after the commencement of the next succeeding session of the
Senate." Failure to comply with this proviso presumably
results in the suspension of the appointee's right to be paid
out of appropriated funds. While the reconvening of the
Senate after a temporary adjournment is not the commence-
ment of the next session of the Senate in the ordinary sense
of that term, we have seen that 5 U.S.C. 56 uses those words
in a nontechnical way. If the words "termination of a ses-
sion" in clauses (a), (b), and (c) have been interpreted as
including a temporary adjournment which does not termi-
nate a session, it is likely that the words "commencement of
refer to the reconvening of the Senate after any adjourn-
the next succeeding session of the Senate" correspondingly
ment, regardless of whether, technically, it begins a new ses-
sion. In these circumstances, prudence suggests that I base
my advice on the assumption that 5 U.S.C. 56 may require
16
venes in August. 10
the submission of new nominations when the Senate recon-
viso 5 U.S.C. 56 can be rested safely on the ground pro- that
I do of not believe that noncompliance with the terminal
nominations made prior to adjournment but not finally acted
result upon at that time are still pending before the Senate the
The of the suspension of Senate Rule XXXVIII(6). as
tingency. It could be argued, of con-
statute 20 does not contain an exception covering that
pointment 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
any event, I should hesitate to recommend the Senate. for In
quirement in an area as technical as the appointment and re-
equitable reasons the omission of an express statutory quasi-
pay of Federal officers.
In weighing these conflicting considerations, it
tions to me, on the one hand, that the submission of new nomina- appears
burden. to the Senate does not constitute an intolerably
lished Comptroller General-with which I fully agree-have
Moreover, as I shall show presently, rulings of heavy the
jeopardize the recess appointee's pay status. On the not
that compliance with the letter of the statute will estab-
result hand, the in failure to resubmit a nomination conceivably other
circumstances, I recommend that when the Senate
the suspension of the appointee's pay. In these may
officials venes in August nominations should be submitted for recon-
of the who received appointments during the adjournment all
Senate, including those whose nominations were pend-
meaning. the succeeding The session of the Senate" should be given "commencement of
19 next Arguments, of course, can be made that the words
port the conclusion within which to submit the nomination provise to gives the President
forty days circumstance that the terminal their traditional
Senate because, as a that the proviso refers to the next the regular Senate might sup-
nomination, it could be 8, 1960, and before the President has forty days after
its return on August days. If the Senate should adjourn within sessions of the Senate
rarely last forty matter of experience, adjourned session of the
the Constitution, argued, in analogy to Article submitted the
has 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
ample on time for in order to insure that the nomination the Senate Committee
the The Judiciary terminal proviso to 5 U.S.C. 56 was inserted Senate. by
S. Rept. 1079, 76th adequate Cong., consideration 1st sess., p. 2. by any incoming session "will be of submitted the Senate." in
17
ing before the Senate at the time of its adjournment on
July 3, 1960. 21 As a matter of precaution, I urge that
nominations be submitted again when the Senate commences
a new session in the technical sense.
The recess appointees' pay status will not come to an end
when the Senate adjourns after its August sitting. When
the Senate concludes its session after reconvening in Au-
gust, a situation will be presented which appears to fall
within the exception to 5 U.S.C. 56, clause (b) : The Senate
then will have terminated a session, and at that time there
will be pending before it the nomination of a person who
had received an appointment during the preceding recess
of the Senate. This raises the question of whether the pay
rights of a recess appointee, whose appointment originally
complied with the requirements of 5 U.S.C. 56, can be cut
off by the circumstances existing at the time of the subse-
quent termination of a session of the Senate. The opinion
of the Comptroller General in 28 Comp. Gen. 121 cogently
demonstrates that this is not the case because the words
"termination of the session of the Senate" in 5 U.S.C. 56
uniformly refer to the session immediately preceding the
recess when the appointment was made, and not to any
subsequent termination.
An analysis of 5 U.S.C. 56 shows that in clauses (a) and
(c) the words "termination of the session of the Senate"
unquestionably relate to the session immediately preceding
the recess of the Senate during which the appointment was
made and not to a later one. The Comptroller General in-
ferred from this that "it would be wholly inconsistent to
say that the phrase 'termination of the session' as used
therein [clause (b) had reference to other than the session
preceding the recess when the appointment was made. 22 * *
*
In other words, the entire statute speaks as of the date of
the recess appointment under which the claim to compensa-
31 Considering that it is desirable to obtain the advice and consent of the
Senate to a nomination at the earliest possible moment, my recommendation
includes the submission of nominations for those who received recess appoint-
ments to vacancies which occurred after the adjournment of the Senate, al-
though 5 U.S.C. 56 does not cover those appointments.
= The Comptroller General also explained that the statute uses the words
"termination of the session" in the specific sense, hence, that it refers to the
termination of a particular session, i.e., the one preceding the recess appoint-
ment "rather than to just any session" 28 Comp. Gen. 121, 128.
18
tion arises." (28 Comp. Gen. 121, 128 (1948) ). The Comp-
troller General, therefore, concluded that the right to
compensation, once vested, does not become defeated by a
subsequent adjournment. He realized that under his in-
terpretation the words "termination of the session of the
Senate" in 5 U.S.C. 56 refer to a different session than the
words "End of their next Session" in Article II, section 2,
clause 3 of the Constitution. He attributed this "apparent
inconsistency" to the circumstance that the recess appoint-
ment provisions of the Constitution and of 5 U.S.C. 56 serve
different purposes (28 Comp. Gen. 121, 129).
I fully agree with the conclusions of the Comptroller
General reached on the basis of the statutory language. I
believe, however, that this result may be supported by two
additional, broader considerations. First, the purpose of the
1940 act amending 5 U.S.C. 56 was to eliminate the hard-
ship and injustice resulting from the inability to pay recess
appointees appointed to vacancies which existed while the
Senate was in session, where the vacancies arose shortly be-
fore an adjournment of the Senate, or where a nomination
was pending before the Senate, but where the Senate ad-
journed before acting on it. The purpose of the 1940 statute
was to permit the payment of salaries out of appropriated
funds in those cases. It would create a new instance of the
very hardship which the statute was intended to alleviate,
if the right to compensation, once accrued, could be cut off
by subsequent events, such as the reconvening and subse-
quent adjournment of the Senate, and if a recess appointee
thereafter were required to work without pay for the rest of
his constitutional term, or until the Senate should confirm
him. An interpretation of the statute, which gives rise to
results SO inconsistent with the purposes it is designed to
serve, must be rejected.
Second, it is the basic policy of the United States that a
person shall not work gratuitously for the Government, or
be paid for such work by anyone other than the Government
(31 U.S.C. 665 (b) ; 18 U.S.C. 1914). It is well recognized
that a person who is not paid cannot be expected to perform
his work zealously, and that he may be subjected to a host
of corrupting influences. A statute which provides that a
person cannot be paid by the Treasury until the happening
19
of a future event, therefore, must be strictly construed.
Even less favored is an interpretation which would result in
the defeasance of a right to be paid, once it has accrued. In
the case of any ambiguity, a statute should be read so as to
the United States.
permit the current compensation for work performed for
I therefore conclude that an adjournment of the Senate
during, or terminating, the second session of the 86th Con-
gress will not affect the pay status of a person appointed
during the current recess of the Senate, and whose appoint-
56.23 ment originally complied with the requirements of 5 U.S.C.
Respectfully,
LAWRENCE E. WALSH,
Acting Attorney General.
after the It was in session, and who is not confirmed, when the existed while
23 Senate A final caveat: A recess appointee filling a vacancy which
caution, reconvenes a in August, may not be given, out of a Senate adjonrns
sary because second his recess appointment. Such second appointment superabundance of
bring the of the second session of the 86th Congress; following the final
adjournment term runs until the end of the first session is unneces-
celvably, appointee within the exception to 5 U.S.C. 56, clause moreover, it might con-
result in the suspension of his salary. Cf. 28 Comp. Gen. (b) 30, and, 37-38.
U.S. GOVERNMENT PRINTING OFFICE: 1980
Comp. Gen.]
DECISIONS OF THE COMPTROLLER GENERAL
121
retirement, and since there is included in such average pay the he
received as a commissioned officer during a portion of such six months' pay
period, it is apparent that his retired pay is being received "for or
account of services as a commissioned officer," especially when it on is
considered that approximately 60 percent of his retired pay is received
solely by reason of the inclusion of the pay of his commissioned rank.
It is solely by reason of his commissioned service that a substantial
scribed portion of his retired pay is computed on the basis of the
tion by law for the commissioned rank held by him during pay a pre-
Gen. 271. While it might be contended that only the difference be-
of the 6-month period preceding his retirement. See 26 Comp. por-
tween the retired pay he would have received as an enlisted man and
the retired pay he is receiving by reason of the inclusion of commis-
sioned service actually represents retired pay received for or on
his count of commissioned service, the law governing the computation ac- of
retired pay authorizes no alternative basis for computing retired
pay under such circumstances. Cf. 26 Comp. Gen. 711. That is to
say, the the act of June 30, 1941, authorizes the computation of retired
on basis of the average pay the enlisted man received for six months pay
enlisted such 6-month average computation the period during which the
prior from to retirement, and there would be no authority for excluding
that man served as a commissioned officer, or for any assumption
the enlisted man would have served in any particular enlisted
grade during the entire 6-month period but for the fact that he served
as a commissioned officer. Of. 27 Comp. Gen. 129, 131. Hence, it
must be held that Master Sergeant Matheson is in receipt of retired
pay "for or on account of services as a commissioned officer" within
the meaning of that phrase as used in section 212, supra, and since his
tion retired pay is less than $3,000 per annum, and his civilian
is in excess of $3,000 per annum, the concurrent payment compensa- of retired
pay and civilian compensation is not authorized.
is not authorized.
Accordingly, payment on the voucher, which is retained in this Office,
[B-77903]
Appointments-Recess Appointments
to The Presidential reconvening of the Senate of the S0th Congress on July 20,
until December proclumation, and its subsequent adjuurnment 1948, pursuant
Senate within Congress. and not as constituting the "next of the second
session of the S0th 31, 1948, is to be regarded merely as a continuation on August 7, 1918,
SO that commissions the meaning of Article II. section 2, clause 3, of the Session" of the
of persons holding recess appointments as Federal Constitution, judges
122
DECISIONS OF THE COMPTROLLER GENERAL
128
made prior to July 20, 1948, may not be considered as having expired on August 7,
1048.
Persons serving under ralid recess appointments as Federal judges when the
Senate had reconvened in the saine session. and whose nominations were pend-
ing before the Senate at the time that body again recessed to a definite date may
continue to receive the salary attached to the offices, provided they continue to
serve under their original recess appointments so as to render inapplicable the
prohibition in section 1701, Revised Statutes, as amended. against payment of
compensation to persons appointed during the recess of the Senate who had
received appointments during a preceding recess and whose nominations were
pending at the time the second recess appointment was made.
Comptroller General Warren to the Director, Administrative Office
of the United States Courts, August 26, 1948:
I have letter of August 10, 1948, from the Assistant Director, refer-
ring to the decision of this Office dated July 16, 1948, to you, B-77963,
2S Comp. Gen. 30, and presenting a further question concerning the
right to payment of salary of Honorable Edward Allen Tamm, Hon-
orable Samuel Hamilton Kaufman, and the Honorable Paul P. Rao,
all of whom received recess appointments to the Federal judiciary from
the President during the recess of the Congress which occurred June
20 to July 26, 1948.
It is stated in the aforesaid letter that the names of these three judges
were again submitted to the Senate for confirmation on July 29. 1948,
after it had reconvened on July 26, 1948, pursuant to the President's
proclamation (Proc. No. 2796, 13 F. R. 4057) ; that the Senate took no
action on these nominations, and that they were still pending when it
adjourned on August 7, 1948, pursuant to House Concurrent Resolu-
tion No. 222, reading as follows:
Resolved by the Поияе of Representatives (the Scnate concurring), That when
the two Houses adjourn on Saturday, August 7, 194S, they stand adjourned until
12 o'clock meridian on Friday, December 31. 1945, or until 12 o'clock meridian
on the third day after the respective Members are notified to reassemble in
accordance with section 2 of this resolution, whichever ereut first occurs.
SEC. 2. The President pro tempore of the Senate, the Speaker of the House of
Representatives, the acting majority leader of the Senate, and the majority
leader of the House of Representatives, all acting jointly, shall notify the Mem-
bers of the Senate and the House, respectively, to reassemble whenever, in their
opinion, the public interest shall warrant it.
It is indicated in the letter that, in accordance with the aforemen-
tioned decision of July 16, 1948, the three judges received payment of
salary in due course after the assumption of office under their recess
appointments. A decision now is requested as to whether the occur-
rence of the facts, as set forth above, subsequent to the rendition of the
cited decision, requires the suspension of payment of their salaries.
In addition to the above stated facts, it is understood that Judges
Tamm, Kaufman, and Rao have not been given interim appointments
since the adjournment of the Congress on August 7, 194S, pursuant to
the resolution above quoted.
Comp. Gen.]
DECISIONS OF THE COMPTROLLER GENERAL
123
In considering the question presented, it is deemed appropriate to
advert briefly to the facts and the holding in the decision of July 16,
1945. Since the relevant circumstances in the case of each of the
judges involved do not differ in any material respects, the present mat-
ter will be considered, for the purpose of simplification, upon the basis
of the facts in Judge Tamm's case. The nomination of Judge Tamm
was sent to the Senate on February 3, 1948. The Senate, without act-
ing on the nominations, adjourned pursuant to House Concurrent
Resolution 218, on June 20, 1948, to a specified date, namely, Friday,
December 31, 1948, unless notified to reassemble at an earlier date by
call of its officers. On June 22, 1948, Judge Tamm was given a recess
appointment by the President to the office he now holds and, on June
28, 1948, he took the oath of office and entered on duty. Upon the basis
of these facts, there was presented for consideration the question as
to whether payment of salary could be made in view of the provisions
of section 1701, Revised Statutes, as amended, 5 U.S. C. 56, which are
as follows:
No money shall be paid from the Treasury, as salary, to any person appointed
during the recess of the Senate, to fill a vacancy in any existing office, if the
vacancy existed while the Senate was in session and was by law required to be
filled by and with the advice and consent of the Senate, until such appointee has
been confirmed by the Senate. The provisions of this section shall not apply
(a) if the vacancy arose within thirty days prior to the termination of the ses-
sion of the Senate; or (b) if, at the time of the termination of the session of the
Senate, a nomination for such office, other than the nomination of a person ap-
pointed during the preceding recess of the Senate, was pending before the Senate
for its advice and consent; or (c) if a nomination for such office was rejected by
the Senate within thirty days prior to the termination of the session and a person
other than the one whose nomination was rejected thereafter receives a recess
commission Provided, That a nomination to fill such vacancy under (a), (b),
or (c) of the section, shall be submitted to the Senate not later than forty days
after the commencement of the next succeeding session of the Senate.
In the decision of July 16, 1948, it was held that the adjournment of
the Senate on June 20, was a "termination of the session" within the
meaning of clause (b) of section 1761, Revised Statutes, supra, and
that Judge Tamm, having been previously nominated during that ses-
sion, and his nomination having been pending in the Senate when it
adjourned on June 20, was entitled to be paid the salary of the office
under his appointment of June 22, 1948.
As pointed out in your letter, since the foregoing decision of July
16, 194S, was rendered, the Senate reconvened on July 26, pursuant to
the call of the President; Judge Tamin's nomination was again sub-
mitted to the Senate on July 29; and On August 7, the Senate ad-
journed until December 31, 1948. What effect then, if any, do the
recent meeting of the Senate and the ensuing recess have upon the
right of Judge Tanim to continue to receive the salary of his office?
As was indicated in the decision of July 16, 1948, the appointment of
Judge Tamm on June 22, 194S, appears to have been a valid recess
124
DECISIONS OF THE COMPTROLLER GENERAL
[28
appointment by the President under Article II, section 2, clause 3, of
the Constitution which provides as follows:
The President shall have Power to fill up all Vacancies that may happen dur-
ing the Recess of the Senate, by granting Commissions which shall expire at the
End of their next Session.
Hence, there would appear to be for consideration first the question
as to whether the convening of the Congress on July 26, 194S, and its
subsequent adjournment on August 7, 1948, constituted the next session
of the Senate within the meaning of the said article of the Consti-
tution and that, as a consequence, Judge Tamm's commission expired
on the latter date. If the answer to the said question be in the affirma-
tive, it would seem to follow that the payment of the salary to Judge
Tamm beyond August 7 properly may not be made. However, in
view of the matters hereinafter set forth, I have no doubt but that
the answer to the said question must be in the negative. In the decision
of July 16, 1948, it was pointed out that the adjournment of the
Congress on June 20, 1948, pursuant to House Concurrent Resolution
No. 218 was not an adjournment sine die but was an adjournment to a
specific date, and it was stated that said adjournment merely con-
stituted a recess of the second session of the 80th Congress. The said
resolution No. 218 reads as follows:
Resolved, That when the two Houses adjourned on Sunday, June 20, 1048. they
stand adjourned until 12 o'clock meridian on Friday, December 31, 1948, or
until 12 o'clock meridian on the third day after the respective Members are
notified to reassemble in accordance with section 2 of the resolution, whichever
event first occurs.
SEC. 2. The President pro tempore of the Senate, the Speaker of the House of
Representatives, the acting majority leader of the Senate, and the majority
leader of the House of Representatives, all acting jointly, shall notify the Mein-
bers of the Senate and the House respectively, to reassemble whenever, in their
opinion, the public interest shall warrant it.
The correctness of the referred-to statement is substantiated by the
facts hereinafter set forth.
First, it will be observed that the Proclamation of the President
(Proc. No. 2796, 13 F. R. 4057) notifying the Congress to assemble
on July 26, 1948, speaks merely of a convening of such body and does
not refer to the meeting as an "extra" or "special" session.
Said proclamation reads, in part, as follows:
Whereas the public interest requires that the Congress of the United States
should be convened at twelve o'clock. noon, on Monday, the twenty-sixth day
of July, 1048, to receive such communication as may be made by the Executive:
NOW, THEREFORE I, HARRY S. TRUMAN, President of the United States
of America, do hereby proclaim and declare that an extraordinary occasion
requires the Congress of the United States to convene at the Capitol in the City
of Washington on Monday, the twenty-sixth day of July, 194S. at twelve niclock,
noon. of which all persons who shall at that time be entitled to act as members
thereof are hereby required to take notice.
To this point, the instant situation is identical, in all material respects,
to that which existed in connection with the adjournment of the first
Conip. Gen.]
DECISIONS OF THE COMPTROLLER GENERAL
125
session of the S0th Congress on July 27, 1947, by Senate Concurrent
Resolution No. 33, and its reconvening on November 17, 1947, pursuant
10 Proclamation No. 2751, issued by the President on October 23, 1947.
12 F. R. 6011. The said adjournment of the first session of the 80th
Congress and its subsequent reconvening on November 17, 1947, was
the subject of an opinion by Judge Wyzanski of the United States
1947 in the case of Ashley V. Keith Oil Corporation, et al., 7 F. R. D.
District Court, District of Massachusetts, rendered on November 18,
580. The question there involved was the effective date of certain
amendments to the Federal Rules of Civil Procedure which
take effect "three months subsequent to the adjournment of the were first to
Wyzanski are believed to be so pertinent to the present situation that
regular session of the 80th Congress." The remarks of Judge
I feel they should be quoted herein at length.
The opinion reads in part as follows (pages 590-592) :
new session Congress either adjourning the session sine die; second, by the of the two
Houses to of at least two ways: First, by a concurrent resolution brought
The a close first in regular session began January 3, 1947. That session could be
a new Amendment to the United States Constitution which of Section 2 of
the Twentieth under an Act of Congress or under that clause beginning of a
unless they "meeting shall begin at noon on the 3rd day of January [in provides every year] that
Neither [Congress] shall by law appoint a different day."
as operative.
Tec become of those two methods of adjourning the first session of Congress has
Concurrent die. that when the S0th Congress was in session last session sine
Congress It is true has not as yet passed a resolution to adjourn the first
temporary provisions not now material. But that resolution notified to re-
assemble under from July 27, 1947 until January 2, 194S, unless that Congress
should adjourn Resolution No. 33 set out in the margin, providing summer it passed
1943, adopted Congress. 2d Sess. It resembled Senate Resolution House Docu-
ment #S10, 75th $ 040 of the Rules of the House of Representatives, customarily used for a
recess. See adjournment. It was the form of resolution was a mere
ending an old 7471, under which Congress separated and reassembled Record, 7Sth
Cong., 1st Sess. by the 7Sth Congress, First Session, Congressional of July S,
the 80th 7Sth Cong., 1st Sess., 7519. Thus it cannot 50S; Congres-
sional Record, session or beginning a new session. Cf. 57 Stat. without
closed 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
Resolution No. only relevant law passed by the Eightieth Congress is Amend-
ment. ning The a new under either an Act of Congress or the Twentieth by the begin-
Nor of has the session first session of the S0th Congress been closed as yet
gress shall 156, which states that "the second session of the Senate Joint
session as of 1st 11: Sess. 10643. That act would only operate to terminate Record,
80th Cong., begin at noon Tuesday, January 6. 1948." Congressional Eightieth Con-
vanced by the Twentieth 50 a. m. January 6, 194S. And this date is not in the first
there is no law appointing Amendment a different day. which sets the date as January any 3 way only ad- if
mentarian So far my of reasoning appears to be entirely in accord with that
of the Director. the Administrative Office of the United States Courts, and the
Director of the House of Representatives. the Secretary of the Senate of the Parlia-
ruling of Judge September 1947, pp. 20. 27, although it seems Annual Report
But there Reeves in Shafir V. Wabash R. Co., D. C. IV. D. Mo., contrary 1 to the
act S0th of Congress has or already been brought to a close not by concurrent session of the
Congress remains the difficult problem as to whether the first F. R. D. 467.
reconvening by the Twentieth Amendment, but by the action resolution, by
issued October on November 17 pursuant to the Proclamation of President of Congress Truman in
on 23, 1947, No. 2751. 12 Fed. Reg. No. 210; Oct. 25, 1947.
126
DECISIONS OF THE COMPTROLLER GENERAL
[28
Article II, § 3, of the United States Constitution provides that the President
"may on extraordinary occusions, convene both Houses, or either of them."
This is language of unusual breadth. It is not limited to the situation where :1
particular Congress has never met in session. or where a Congress has met and
adjourned sine die. It also covers the situation where Congress or, either House
is not meeting because it is in recess under a temporary adjournment.
If the President convenes a Congress that has never met, of course, be is con-
rening it in a new session, which is called in the proclamation nn "extra"
session. See e. g. Proclamation of President Hoover. March 7, 1920. 48 Stat. 29S1.
If the President convenes a Congress that has met but adjourned sine die, be is
likewise convening it in a new session, which is called an "extra" session. See
e. g. Proclamation of President Roosevelt, Sept. 10, 1939, No. 2305, 5+ Stat
2660. But in the case at bar we are faced with a situation where when the
President issued his proclamation Congress had met and adjourned only tem-
poratily. Is the reconvening of Congress pursuant to the President's call auto-
matically the beginning of a new session and the close of an old session? Jeffer-
son evidently thought it would be. § 51 of his Manual states that if Congress
is "convened by the President's Proclamation, this must begin a new session.
and of course determine the preceding one to have been a session." This manual
is, of course. entitled to great weight because since 1S37 it has been, by virtue
ef a still effective rule of the House of Representatives, governing authority
in that House in all cases where there is no conflict with the standing rules
and orders of that House. House Rule 43. House Document #S10, 78th Congress,
2d Sess. See Congressional Record. S0th Cong., 1st Sess., 36.
On the other hand, the present Parliamentarian of the House and Secretary
of Senate have considered the reassembling of the Congress on November 17,
1947. as a continuation of the first session. In their judgment no extra or special
session has begun. And their riew is finding expression every day in the pagina-
tion of the Congressional Record and in like official Congressional documents.
the matter does not appear to have been debated.
Congress SO far has apparently acquiesced in this action of its delegates; though
Moreover, the view of these officers of Congress is not in conflict with any
specific language of President Truman's Proclamation. Unlike the Proclumations
of Presidents Hoover and Roosevelt already cited, the Proclamation of Presi-
dent Truman dated October 23, 1947. does not refer to an "extra" session which
will result from the convening of Congress pursuant to the President's call.
It is unnecessary for me in the case at bar to decide which of these conflicting
views is correct. Even if Jefferson's manual is correct. the new amendment
to the Rules cannot go into effect prior to February 17. 1948. It is quite possible
that before then Congress by legislative action will conclusively remove any
ambiguity as to the proper numerical description of its present session, or will
into effect.
more explicitly provide a date when the new amendments to the rules shall go
Thereafter, the first session of the S0th Congress adjourned sine die
on December 19, 1947, thus evidencing the correctness of the afore-
said views of Judge Wyzanski that the adjournment of the Congress
on July 27, 1947, pursuant to Senate Concurrent Resolution No. 33,
constituted a recess and that the reconvening of the Congress on No-
vember 17, 1947, pursuant to the proclamation of the President issued
on October 23, 1947, was a continuation of the first session and not a
new session.
In the light of the foregoing. it seems clear that the reconvening
of the 80th Congress on July 26, 1948, pursuant to the President's
proclamation of July 15, 194S (Proc. No. 2796, quoted above), merely
constituted a continuation of the second session.
Furthermore, and of greater significance, is the fact that the Con-
gress itself considers the proceedings between July 26 and August 7,
1948, to be a continuation of those of the second session which had ad-
Comp. Gen.]
DECISIONS OF THE COMPTROLLER GENERAL
127
journed on July 20, 1918. In such connection. the calendars of both
the House of Representatives and the Senate covering the proceed-
ings that between July 26 and August 7 show that the business thereof
tained gressional Record for the period involved refers to the matters
was of the second session of the 80th Congress. Also, the Con-
second therein as the proceedings and debates of the 80th Congress, con-
session. In addition, it is understood that the Journals of the
ond Congress show the proceedings of the period as being those of the sec-
session of the 80th Congress.
Finally, it will be observed from House Concurrent Resolution No.
said resolution were notified that to reassemble in accordance with section respective 2 of
Members December 31, 1948, or until the third day after the
until -222, quoted above, that, on August 7, 1945, the Congress adjourned
Session" 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,
-cffice 3, of the Constitution, and that Judge Tamm's commission 2,
the 80th did not expire on August 7, 1948, when the second session of to
tion No. Congress adjourned pursuant to House Concurrent Resolu-
inent Judge Tamm properly may be made after said date unless such salary
to 222, supra. It follows, therefore, that the payment of
Revised may be said to be prohibited by the provisions of section 1761, pay-
Statutes, as amended, supra.
his 1948, Judge Tamm was entitled to the payment of salary under 16,
As that hereinbefore stated, it was held in Office decision of July
his (b) of section 1761 of the Revised Statures, as amended, since of
clause recess appointment of June 22, 1948, by virtue of the provisions
-20, nomination was pending in the Senate when it adjourned on June
payment 194S. prohibition While clause (b) is, in itself, an exception to the salary
recess 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
-ment House of the Congress on June 20, to December 16-holding 31, 1948, that the adjourn-
within Concurrent Resolution 218, πas a "termination of the pursuant to
it the meaning of section 1761, Revised Statutes, as amended- session"
extent. 1948, likewise constitutes a "termination of the session"
31, must be considered that the adjournment on August 7, to December
And, since there πas another nomination of Judge to Tamm that
128
DECISIONS OF THE COMPTROLLER GENERAL
[28
to office pending in the Senate on August 7, the real question is whether
the present case falls within the class of those specifically excluded
from the exemption provided by clause (b).
In fact, the issue can be further simplified. As illustrated above,
there are now involved not one but two terminations of Senate ses-
sions within the meaning of the subject statute-that of June 20 and
that of August 7. The decision here would appear to turn upon
whether the phrase "termination of the session" in clause (b) should
be regarded as having reference to the first or the second adjournment
date. If it refers to the earlier date only the conclusion of the de-
cision of July 16 still obtains; if, however, the term now must be
held to refer to the later date, Judge Tamm is specifically excluded
from the exemption provided generally by clause (b) since he would
be a person who, though having a nomination pending at the termi-
nation of the session (August 7), would have been appointed "during
the preceding recess."
As stated above, the prohibition in section 1761, Revised Statutes,
is against the payment of salary to a recess appointee if the vacancy
to which he is appointed "existed while the Senate was in session."
There can be no question that the "session" of the Senate in contem-
plation there is the session immediately preceding the recess during
which the appointment was made. Clause (a), as added by the 1940
amendment, is to the effect that the prohibition shall not apply if the
vacancy arose within 30 days "prior to the termination of the session
of the Senate." The same conclusion must be reached with respect
to the "session" referred to in this exception. That is, it likewise must
be the session immediately preceding the recess during which the ap-
pointment was made. So that, coming to clause (b), it would be
wholly inconsistent to say that the phrase "termination of the session"
as used therein had reference to other than the session preceding the
recess when the appointment was made. Clause (c) is the same. In
other words, the entire statute speaks as of the date of the recess
appointment under which the claim to compensation arises.
This position is further supported by the general rule that, in it
statute, the article "the" is to be construed as having a specifying or
particularizing effect, opposed to the indefinite or generalizing force
of "a" or "any." Thus, the language "termination of the session"
ordinarily would be viewed as having reference to a particular session
rather than to just any session. Here, the session preceding the recess
when the appointment is made would be the one most naturally con-
templated by the language.
In this view of the statute, it must be concluded that the right of
Judge Tamm to compensation under his recess appointment of June
22, 1948, to which he became entitled under clause (b) of section 1761,
Comp. Gen.]
DECISIONS OF THE COMPTROLLER GENERAL
129
!S
Revised Statutes, as amended, has not been divested or otherwise
T
d
affected by the events occurring subsequent to such appointment and
vesting of right. In other words, the subsequent occurring events
e,
have not had the effect of placing Judge Tamm in the position of a
person appointed during the recess of the Senate who had received an
S-
id
appointment during a preceding recess of the Senate and whose nomi-
nation was pending before the Senate at the time the second recess
on
ld
appointment was made. The same principles apply, of course, to
others in like status.
nt
:e-
It might be stated that I am not unaware of certain corollaries of
be
this decision which at first blush might seem incongruous but which,
ed
upon thorough consideration, have been deemed of less than con-
Id
trolling importance. In the first place, the Constitution (Article II,
ni-
section 2, clause 3) provides that recess appointments shall expire at
the end of the next session of the Senate. It has been stated above
ng
that the adjournment of August 7 would have to be regarded as a
:es.
"termination of the session" within the meaning of the compensation
icy
statute, and yet, in applying the said Constitutional provision the ad-
n."
journment of August 7 would have to be regarded merely as effecting
m-
a recess of the second session of the 80th Congress. Suffice it to say
ing
that this apparent inconsistency is attributable solely to a construction
940
intent. of the compensation statute designed to carry out the obvious legislative
the
ion
Then, there is the rather anomalous situation in that, should Judge
ect
Tamm-or others in like position-receive a new recess appointment he
mist
would be precluded from receiving compensation under such appoint-
ap-
ment for the same reasons that required the conclusion in the decision
be
of July 16 that Judge Harper could not be paid under his subsequent
on"
recess appointment. The answer here is that new recess appointments
the
are not necessary SO long as the original appointment remains valid
In
under the provisions of the Constitution. But once a new appoint-
cess
ment is given, the prohibitory language in clause (b) of section 1761,
appointee. Revised Statutes, operates to preclude the payment of salary to the
in a
g or
Your submission is answered accordingly.
orce
ion"
sion
[B-79103]
ecess
con-
Compensation-Postal Service-Automatic Promotions—
Service Credits
it of
Service Under section 1 of the act of June 19, 1948, authorizing, in the case of Postal
June
employees transferred from positions for which automatic promotions
1761,
The question whether an intrasession recess of the Senate constitutes a
recess within the meaning of Article 11, Section 2, Clause 3, of the Con-
stitution has a checkered background. Attorney General Knox ruled in
1901 that an adjournment of the Senate during the Christmas holidays,
lasting from December 19, 1901, to January 6, 1902, was not a recess dur-
August 3, 1979
ing which the President could make recess appointments. 23 Op. Att'y.
Gen. 599 (1901). That interpretation was overruled in 1921 by Attorney
General Daugherty, who held that the President had the power to make
79-57 MEMORANDUM OPINION FOR THE
appointments during a recess of the Senate lasting from August 24 to
COUNSEL TO THE PRESIDENT
September 21, 1921. 33 Op. Att'y. Gen. 20 (1921). The opinion concluded
that there was no valid distinction between a recess and an adjournment,
and it applied the definition of a recess as described by the Senate
Constitutional Law-Article II, Section 2,
Judiciary Committee in its report of March 2, 1905:
Clause 3-Recess Appointments-Compensation
the period of time when the senate is not sitting in regular or ex-
(5 U.S.C. § 5503)
traordinary session as a branch of the Congress, or in extraor-
dinary session for the discharge of executive functions; when its
members owe no duty of attendance; when its Chamber is empty;
We are responding to your inquiry whether the President can make ap-
when, because of its absence, it can not receive communications
pointments under Article 11, Section 2, Clause 3 of the Constitution' dur-
from the President or participate as a body in making appoint-
ments
ing the forthcoming recess of the Senate, that is expected to last from
[S. Rept. 4389, 58th Cong., 3d sess., 1905; 39
about August 2 until September 4, 1979. It is our opinion that the Presi-
CONGRESSIONAL RECORD 3823. [(Emphasis added.)]
dent has this power.
The Attorney General, however, closed with the warning that the term
A preliminary question is whether the President's authority to make ap-
"recess" had to be given a practical construction. Hence, he suggested
pointments under this clause, commonly called "recess appointments,"
that no one "would for a moment contend that the Senate is not in SCS-
applies to all vacancies that exist during a recess of the Senate or whether it
sion" in the event of an adjournment lasting only 2 days, and he did not
is limited to those vacancies that arise during the recess. A long line of
believe that an adjournment for 5 or even 10 days constituted the recess in-
opinions of the Attorneys General, going back to 1823 (see 41 Op. Att'y
tended by the Constitution. He admitted that by "the very nature of things
Gen. 463, 465 (1960) ), and which have been judicially approved (see,
the line of demarcation cannot be accurately drawn." 11c believed, never-
theless, that:
Allocco V. United States, 305 F.(2d) 704 (2d Cir. 1962) ), has firmly
established that the words "may happen" is to be read as meaning, "may
the President is necessarily vested with a large, although not
happen to exist during the recess of the Senate," rather than as, "may
unlimited, discretion to determine when there is a real and gen-
happen to occur during the recess of the Senate." The President's power
uine recess making it impossible for him to receive the advice and
to make recess appointments thus is not limited to those vacancies that OC-
consent of the Senate. Every presumption is to be indulged in
curred after the Senate went into recess, but extends to all vacancies ex-
favor the validity of whatever action he may take. But there is a
isting during the recess regardless of the time when they arose. It should be
point, necessarily hard of definition, where palpable abuse of
noted, however, that where a vacancy existed while the senate was in ses-
discretion might subject his appointment to review.
sion, the recipient of the recess appointment may be paid for his services
This opinion was cited and quoted with approval by the Comptroller
only if the conditions of 5 U.S.C. § 5503 have been met. We discuss this
General in 28 Comp. Gen. 30, 34 (1948), and reaffirmed by Acting At-
matter in more detail later in this opinion.
torney General Walsh in 1960 in connection with an intrasession summer
recess lasting from July 3, 1960, to August 15, 1960. 41 Op. Att'y Gen.
463 (1960). Presidents frequently have made recess appointments during
'Article II, § 2. cl. 3, provides:
Intrasession recesses lasting for about a month.
The President shall have Power to fill up all Vacancies that may happen during the
In the winter of 1970 the Senate recessed from December 22 to
Recess of the Senate, by granting Commissions which shall expire at the End of their
next Session.
December 28, 1970, and the House adjourned from December 22 to
December 29. 1970
in the light of the warning in Attorney General Daughtery's opinion. In
connection with the Pocket Veto Clause of the Constitution, Article
Section 7, Clause 2, the President, however, decided without awaiting our I,
Congress can force the recess appointee to resign by rejecting his nomina
tion. Pursuant to an annual appropriation rider, a rejection has the effec
advice that the 6-day adjournment of the Senate constituted an adjourn.
of cutting off his compensation.' Finally, since, as pointed out above
ment which prevented the return of a Senate bill; hence, that he could
Kennedy V. Sampson is in conflict with an important aspect of the deci
pocket veto S. 3418, The Family Practice of Medicine Act. Senator Ken-
sion of the Supreme Court in the Pocket Veto Case, supra, we do not
judgment that the bill had become law without the signature of the Presi-
nedy, who had voted in favor of the bill, thereupon sought a declaratory
sider it the last word on the question whether the President exercise con
duration. his pocket veto power during an intrasession adjournment of may a month's
dent because the President had failed to return the bill within the 10-day
period provided for in Article 1, Section 7, Clause 2, and that the 6-day
Should the President decide to exercise his recess appointment
intrasession adjournment did not prevent the return of the bill. The D.C.
Circuit Court of Appeals held that the bill had become law. That decision
should be considered.
during the forthcoming recess of the Senate, the following technical points power
was based on the considerations that the 6-day adjournment had not
A. If the vacancy existed while the Senate was in session, the recess
prevented the return of the bill on account of its short duration, and that it
pointee can be compensated pursuant to 5 U.S.C. § 5503, only if: the ap-
ments was an intrasession adjournment and "appropriate arrange-
vacancy arose within 30 days of the end of the session of the Senate, if
for receipt of presidential messages" had been made. Ken-
a nomination for the office was pending before the Senate at the end of or, the
nedy V. Sampson, 511 F.(2d) 430, 442 (C.A.D.C. 1974). The decision
session, or if a nomination for the office was rejected by the Senate within
on an extrapolation of Wright V. United States, 302 U.S. 583 (1938), but rests is
inconsistent with important passages in the Pocket Veto Case, 279 U.S.
30 days before the end of the session. In addition, a nomination to fill the
655, 683-687 (1929), which considered such "appropriate arrangements
vacancy referred to above must be submitted to the Senate not later than
40 days after the beginning of the next session of the Senate. No nomina-
for the receipt of Presidential messages" to be ineffective. The executive
branch did not, however, seek Supreme Court review of Kennedy.
Senate. tion need be submitted where the vacancy occurred during the recess of the
As the result of Kennedy V. Sampson, President Ford indicated that he
would not invoke the pocket veto power during an intrasession
B. is A recess appointment presupposes the existence of a If
there an incumbent in office the recess appointment in itself does vacancy.
Moreover, in view of the functional affinity between the pocket veto recess. and
fect a removal of the incumbent so as to create a vacancy. See, Peck not cf-
recess appointment powers, Presidents during recent years have been hesi-
Senate. tant to make recess appointments during intrasession recesses of the
Before he the President can exercise his recess appointment power in such
United States, 39 Ct. CI. 125 (1904); 23 Op. Atty Gen. 30, 34-35 (1900)). V.
We have carefully reexamined the pertinent opinions of the Attorneys
available, or, if not available, the incumbent must resign.
case must exercise his constitutional removal power to the extent it is a
General Daugherty and Acting Attorney General Walsh, which hold that
General and have concluded that we should follow the opinions of Attorney
LARRY A. HAMMOND
the President is authorized to make recess appointments during a summer
Acting Assistant Attorney General
recess of the Senate of a month's duration. The decision in Kennedy does
not require a departure from those rulings. While the Pocket Veto and
Office of Legal Counsel
Recess Appointment Clauses deal with similar situations, namely, the Presi-
dent's powers while Congress is not in session, they, nevertheless, are
identical. The Pocket Veto Clause deals with an adjournment of the Con- not
See tackler VI. Jung Cartin, Canal
gress that prevents the return of a bill, the Recess Appointment Clause
action No. U.S. Untint Count
with a recess of the Senate. If the Founding Fathers had wanted the
January 8, 1979, me Federal Electron Commission
would clauses to cover the same situation, it is reasonable to assume that they two
have selected identical language for both. See, Holmes v. Jennison,
whenk the /mendenthemmned Stallh from
14 Pet. 540, 570-571 (1840). Moreover, the effect of a pocket veto and of
this Cammon by granting a reven appeartment
recess appointment is different. A pocket veto is final. It kills the legisla- a
tion absolutely and it can A be revived only by resuming the legislative proc-
ded or was request by the President
to An. Jany. Stabler was holding her she
ess from the beginning