                                                                        August 3, 1979


79-57      MEMORANDUM OPINION FOR THE
           COUNSEL TO THE PRESIDENT

           Constitutional Law—Article II, Section 2,
           Clause 3—Recess Appointments—Compensation
           (5 U.S.C. § 5503)


   We are responding to your inquiry whether the President can make ap­
pointments under Article II, Section 2, Clause 3 of the Constitution' dur­
ing the forthcoming recess o f the Senate, that is expected to last from
about August 2 until September 4, 1979. It is our opinion that the Presi­
dent has this power.
   A preliminary question is whether the President’s authority to make ap­
pointments under this clause, commonly called “ recess appointm ents,”
applies to all vacancies that exist during a recess o f the Senate or whether it
is limited to those vacancies that arise during the recess. A long line of
opinions o f the Attorneys General, going back to 1823 (see 41 Op. A tt’y
Gen. 463, 465 (1960) ), and which have been judicially approved (see,
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
happen to exist during the recess o f the Senate,” rather than as, “ may
happen to occur during the recess o f the Senate.” The President’s power
to make recess appointm ents thus is not limited to those vacancies that oc­
curred after the Senate went into recess, but extends to all vacancies ex­
isting during the recess regardless o f the time when they arose. It should be
noted, however, that where a vacancy existed while the senate was in ses­
sion, the recipient o f the recess appointm ent may be paid for his services
only if the conditions o f 5 U .S.C . § 5503 have been met. We discuss this
m atter in more detail later in this opinion.


  'Article II, § 2, cl. 3, provides:
    The President shall have Pow er to fill up all Vacancies that may happen during the
    Recess o f the Senate, by granting Commissions which shall expire at the End o f their
    next Session.

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   The question whether an intrasession recess o f the Senate constitutes a
recess within the meaning o f Article II, Section 2, Clause 3, o f the C on­
stitution has a checkered background. Attorney General Knox ruled in
1901 that an adjournm ent o f the Senate during the Christmas holidays,
lasting from December 19, 1901, to January 6, 1902, was not a recess dur­
ing which the President could make recess appointm ents. 23 Op. A tt’y.
Gen. 599 (1901). That interpretation was overruled in 1921 by Attorney
General Daugherty, who held that the President had the power to make
appointments during a recess o f the Senate lasting from August 24 to
September 21, 1921. 33 Op. A tt’y. Gen. 20 (1921). The opinion concluded
that there was no valid distinction between a recess and an adjournm ent,
and it applied the definition of a recess as described by the Senate
Judiciary Committee in its report o f March 2, 1905:
      the period o f time when the senate is not sitting in regular or ex­
      traordinary session as a branch o f the Congress, or in extraor­
      dinary session fo r the discharge o f executive functions; when its
      members owe no duty o f attendance; when its Chamber is empty;
      when, because o f its absence, it can not receive communications
      from the President or participate as a body in making appoint­
      ments * * * . [S. Rept. 4389, 58th Cong., 3d sess., 1905; 39
      C o n g r e s s i o n a l R e c o r d 3823. [(Emphasis added.)]
The Attorney General, however, closed with the warning that the term
“ recess” had to be given a practical construction. Hence, he suggested
that no one “ would for a moment contend that the Senate is not in ses­
sion” in the event o f an adjournm ent lasting only 2 days, and he did not
believe that an adjournm ent for 5 or even 10 days constituted the recess in­
tended by the Constitution. He adm itted that by “ the very nature o f things
the iine o f demarcation cannot be accurately draw n.” He believed, never­
theless, that:
      the President is necessarily vested with a large, although not
      unlimited, discretion to determine when there is a real and gen­
      uine recess making it impossible for him to receive the advice and
      consent o f the Senate. Every presumption is to be indulged in
      favor the validity o f whatever action he may take. But there is a
      point, necessarily hard o f definition, where palpable abuse of
      discretion might subject his appointm ent to review.
This opinion was cited and quoted with approval by the Comptroller
General in 28 Comp. Gen. 30, 34 (1948), and reaffirmed by Acting A t­
torney General Walsh in. 1960 in connection with an intrasession summer
recess lasting from July 3, 1960, to August 15, 1960. 41 Op. A tt’y Gen.
463 (1960). Presidents frequently have made recess appointm ents during
intrasession recesses lasting for about a month.
   In the winter o f 1970 the Senate recessed from December 22 to
December 28, 1970, and the House adjourned from December 22 to
December 29, 1970. When the Office was informally approached about
possible appointm ents during that recess, we advised against their making

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in the light o f the warning in A ttorney General Daughtery’s opinion. In
connection with the Pocket Veto Clause o f the Constitution, Article I,
Section 7, Clause 2, the President, however, decided without awaiting our
 advice that the 6-day adjournm ent o f the Senate constituted an adjourn­
ment which prevented the return o f a Senate bill; hence, that he could
 pocket veto S. 3418, The Family Practice o f Medicine Act. Senator Ken­
 nedy, who had voted in favor o f the bill, thereupon sought a declaratory
judgm ent that the bill had become law without the signature o f the Presi­
dent because the President had failed to return the bill within the 10-day
period provided for in Article I, Section 7, Clause 2, and that the 6-day
 intrasession adjournm ent did not prevent the return o f the bill. The D.C.
Circuit Court o f Appeals held that the bill had become law. That decision
was based on the considerations that the 6-day adjournm ent had not
prevented the return o f the bill on account o f its short duration, and that it
was an in trasessio n a d jo u rn m e n t and “ a p p ro p ria te a rran g e­
ments * * * for receipt o f presidential messages” had been made. Ken­
nedy v. Sampson, 511 F.(2d) 430, 442 (C .A .D .C . 1974). The decision rests
on an extrapolation o f Wright v. United States, 302 U.S. 583 (1938), but is
inconsistent with im portant passages in the Pocket Veto Case, 279 U.S.
655, 683-687 (1929), which considered such “ appropriate arrangements
for the receipt o f Presidential messages” to be ineffective. The executive
branch did not, however, seek Supreme C ourt review o f Kennedy.
   As the result o f Kennedy v. Sampson, President Ford indicated that he
would not invoke the pocket veto power during an intrasession recess.
Moreover, in view o f the functional affinity between the pocket veto and
recess appointm ent powers, Presidents during recent years have been hesi­
tant to make recess appointm ents during intrasession recesses o f the
Senate.
   We have carefully reexamined the pertinent opinions o f the Attorneys
General and have concluded that we should follow the opinions o f Attorney
General Daugherty and Acting Attorney General Walsh, which hold that
the President is authorized to make recess appointments during a summer
recess o f the Senate o f a m onth’s duration. The decision in Kennedy does
not require a departure from those rulings. While the Pocket Veto and
Recess Appointm ent Clauses deal with similar situations, namely, the Presi­
dent’s powers while Congress is not in session, they, nevertheless, are not
identical. The Pocket Veto Clause deals with an adjournm ent o f the C on­
gress that prevents the return o f a bill, the Recess Appointm ent Clause
with a recess o f the Senate. If the Founding Fathers had wanted the two
clauses to cover the same situation, it is reasonable to assume that they
would have selected identical language for both. See, Holmes v. Jennison,
14 Pet. 540, 570-571 (1840). Moreover, the effect o f a pocket veto and o f a
recess appointm ent is different. A pocket veto is final. It kills the legisla­
tion absolutely and it can be revived only by resuming the legislative proc­
ess from the beginning. A recess appointm ent, on the other hand, results
only in the tem porary filling o f an office, and, as a practical matter,

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Congress can force the recess appointee to resign by rejecting his nom ina­
tion. Pursuant to an annual appropriation rider, a rejection has the effect
o f cutting o ff his com pensation.2 Finally, since, as pointed out above,
Kennedy v. Sampson is in conflict with an im portant aspect o f the deci­
sion o f the Supreme Court in the Pocket Veto Case, supra, we do not con­
sider it the last word on the question whether the President may exercise
his pocket veto power during an intrasession adjournm ent o f a m onth’s
duration.
   Should the President decide to exercise his recess appointm ent power
during the forthcoming recess o f the Senate, the following technical points
should be considered.
   A. If the vacancy existed while the Senate was in session, the recess ap­
pointee can be compensated pursuant to 5 U.S.C. § 5503, only if: the
vacancy arose within 30 days o f the end o f the session o f the Senate, or, if
a nomination for the office was pending before the Senate at the end o f the
session, or if a nomination for the office was rejected by the Senate within
30 days before the end o f the session. In addition, a nom ination to fill the
vacancy referred to above must be submitted to the Senate not later than
40 days after the beginning o f the next session o f the Senate. No nom ina­
tion need be submitted where the vacancy occurred during the recess o f the
Senate.
   B. A recess appointm ent presupposes the existence o f a vacancy. If
there is an incumbent in office the recess appointm ent in itself does not ef­
fect a removal o f the incumbent so as to create a vacancy. See, Peck v.
United States, 39 Ct. Cl. 125 (1904); 23 Op. Atty Gen. 30, 34-35 (1900).
Before the President can exercise his recess appointm ent power in such a
case he must exercise his constitutional removal power to the extent it is
available, or, if not available, the incumbent must resign.

                                          Larry A . H am m      ond
                                  Acting Assistant A ttorney General
                                                       Office o f Legal Counsel




  ’For the last pertinent statute, see Treasury, Postal Service and General Governm ent A p­
propriations A ct, 1979, § 604 92 Stat. 1015.
