                Intrasession Recess Appointments

The President may make appointments under the Recess Appointments Clause dunng an
  intrasession recess of the Senate that is of substantial length A 33-day summer recess is
  of sufficient length to permit the President to make recess appointments.

An officer appointed under the Recess Appointments Clause during an intersession recess
  may serve until the end of the next session of Congress after the recess.

5 U.S.C. § 5503 does not prohibit salary payments to a recess appointee whose nomination
   a committee refused to send to the full Senate and whose nomination was not returned
   to the President prior to an adjournment.

                                                                         August 3, 1989

               M e m o r a n d u m O p in io n   for the   Attorney G eneral


   This memorandum responds to your request that this Office determine
whether the President can make appointments under the Recess
Appointments Clause, Article II, Section 2, Clause 3 o f the Constitution,
during the impending intrasession recess o f the Senate, which we under­
stand will extend from August 4 to September 6, 1989. The question aris­
es because a committee failed, by an even vote, to recommend confirma­
tion o f a nominee and then refused to send the nomination to the floor for
consideration by the full Senate. You asked us to address four discrete
issues: (1) whether the President can appoint someone during a recess o f
33 days; (2) when during the recess the President may make such an
appointment; (3) how long the recess appointee may serve; and (4)
whether one who has been subject to such committee action may receive
his salary under 5 U.S.C. § 5503, which prohibits Treasury disbursements
to pay salaries o f recess appointees until they are confirmed by the
Senate unless, inter alia, “at the end o f the session” the nomination was
“pending before the Senate for its advice and consent.” We discuss each
issue in turn.
   We conclude that the President is authorized to make intrasession
recess appointments during a recess o f substantial length, and we believe
that the 33 days o f this recess would be o f sufficient length to permit the
President to make recess appointments. Such appointments could be
made at any time during the recess, but ideally would be made as early as
possible in the recess. Appointees could serve until the end o f the next
session o f Congress after the recess. Finally, we conclude that 5 U.S.C. §
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5503 would not prohibit salary payments to a recess appointee whose
nomination a committee refused to send to the full Senate and whose
nomination was not returned to the President prior to adjournment.

                   I. CONSTITUTIONAL ANALYSIS

A. Length o f Recess Necessary fo r Appointment

   Article II, Section 2, Clause 3 o f the Constitution provides: “The
President shall have Power to fill up all Vacancies that may happen dur­
ing the Recess o f the Senate, by granting Commissions which shall expire
at the End o f their next Session.” The Department o f Justice has long
interpreted the term “recess” to include intrasession recesses if they are
o f substantial length. In 1921, Attorney General Daugherty held that the
President had the power to make appointments during an intrasession
recess o f the Senate lasting from August 24 to September 21, 1921. 33 Op.
Att’y Gen. 20 (1921). The opinion concluded that there was no constitu­
tional distinction between an intersession recess and a substantial
adjournment during a session. It held that the constitutional test for
whether a recess appointment is permissible is whether the adjournment
o f the Senate is o f such duration that the Senate could “not receive com­
munications from the President or participate as a body in making
appointments.” Id. at 24 (quoting S. Rep. No. 4389, 58th Cong., 3d Sess.
(1905); 39 Cong. Rec. 3823 (1905) (statement o f Sen. Spooner)). Attorney
General Daugherty admitted that by “the very nature o f things the line o f
demarcation cannot be accurately drawn.” Id. at 25. But, he concluded:

       the President is necessarily vested with a large, although
       not unlimited, discretion to determine when there is a real
       and genuine recess making it impossible for him to receive
       the advice and consent o f the Senate. Every presumption is
       to be indulged in favor o f the validity o f whatever action he
       may take.

Id.
   Attorney General Daugherty’s opinion was cited and quoted with
approval by the Comptroller General in 28 Comp. Gen. 30, 34-36 (1948),
and reaffirmed by Acting Attorney General Walsh in 1960 in an opinion on
an intrasession summer recess lasting from July 3 to August 8, 1960. 41
Op. Att’y Gen. 463, 468 (1960). In 1979, this Office reaffirmed the opinions
o f Attorney General Daugherty and Acting Attorney General Walsh, 3 Op.
O.L.C. 314, 316 (1979), and, in 1982, again reaffirmed Acting Attorney
General Walsh’s opinion, 6 Op. O.L.C. 585, 588 (1982).
   Acting on this advice, Presidents frequently have made recess appoint­
ments during the traditional summer and election intrasession recesses,
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which typically last for about one month.1 Recently this Office advised
that recess appointments could be made during a 24-day intrasession sum­
mer recess.2 Ultimately, resolution o f the question whether an adjourn­
ment is o f sufficient duration to justify recess appointments requires the
application o f judgment to particular facts. Given past practice, however,
a recess o f 33 days is clearly long enough to permit a recess appointment.

B. When the Appointment Can Be Made

   Given that the rationale for treating substantial intrasession adjourn­
ments as “recesses” for purposes o f the Recess Appointments Clause is
that substantial adjournments prevent the Senate from acting on nomi­
nations, one might expect that the appointment must be made early in the
recess. Nonetheless, there appears to be no authority for such a proposi­
tion and, indeed, in 1983, this Office advised that a recess appointment
could be made at 11:30 a.m. on the day the Senate was to reconvene at
12:00 noon after a 38-day recess. See Memorandum for the Files, from
Ralph W. Tarr, Deputy Assistant Attorney General, Office o f Legal
Counsel (Oct. 19, 1983). Despite the apparent lack o f adverse precedent,
however, it would seem prudent to make any appointment as early in the
recess as possible.

C. Duration of the Recess Appointment

   The duration o f the recess appointment depends on the meaning o f the
term “next session” in the Recess Appointments Clause. It is clearly
established that the “End o f their [the Senate’s] next Session” is not the
end o f the meeting o f the Senate which would begin when the Senate
returns from its adjournment, but rather the end o f the session following
the final adjournment o f the current session o f Congress. See 41 Op. Att’y
Gen. at 469-70. Because the current session o f Congress is the first ses­
sion o f the 101st Congress, a recess appointment made during one o f its
intrasession recesses would not expire until the end o f the following ses­
sion. This would be the second session o f the 101st Congress, which will
probably end in late 1990.

                                II. STATUTORY ANALYSIS

 Although the President has the constitutional power to make appoint­
ments during the intrasession recess o f the Senate, 5 U.S.C. § 5503 pro­


  1See, e g ., 41 Op A tt’y Gen. 463, 468 (I960), 33 Op. A tt’y Gen. 20 (1921); 6 Op. O.L.C. 585, 588 (1982); 3
Op O.L.C. 314,316(1979)
 2 Memorandum fo r the Files from Herman Marcuse, Attomey-Adviser, Office o f Legal Counsel (July 6,
1984). This Office has cautioned against a recess appointment dunng an 18-day mtrasession recess
Memorandum for the Files from Herman Marcuse, Attomey-Adviser, Office o f Legal Counsel (Jan. 28,1985).

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hibits the payment o f salaries to recess appointees, with certain excep­
tions. Section 5503 provides:

          (a) Payment for services may not be made from the
          Treasury of the United States to an individual appointed dur­
          ing a recess o f the Senate to fill a vacancy in an 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 o f the Senate, until the appointee has been con­
          firmed by the Senate. This subsection does not apply —

              (1) if the vacancy arose within 30 days before the end of
              the session o f the Senate;

              (2) if, at the end o f the session, a nomination for the
              office, other than the nomination o f an individual
              appointed during the preceding recess o f the Senate,
              was pending before the Senate for its advice and con­
              sent; or

              (3) if a nomination for the office was rejected by the
              Senate within 30 days before the end o f the session and
              an individual other than the one whose nomination was
              rejected thereafter receives a recess appointment.

          (b) A nomination to fill a vacancy referred to by paragraph
          (1), (2), or (3) o f subsection (a) o f this section shall be sub­
          mitted to the Senate not later than 40 days after the begin­
          ning of the next session o f the Senate.

   The vacancy for which the individual in question was nominated did
not arise within 30 days before the end o f the session; nor would subsec­
tion (a)(3) apply with respect to the individual in question, since it only
applies if a different person is recess appointed than the one who was
nominated prior to the recess. The question, therefore, is whether the
nominee satisfies the requirements of subsection (a)(2).3 The critical
inquiry under this subsection is whether a nomination a committee has

  3 Section 5503(a)(2) requires that the nomination have been pending “at the end o f the session.” We
believe that the term “at the end o f the session" refers to the end o f any period dunng which Congress is
conducting business, not solely to the final adjournment o f a formal session o f Congress See
Memorandum for the Attorney General, from John O McGinnis, Deputy Assistant Attorney General,
Office o f Legal Counsel, Re. Recess Appointments at 8-9 (July 7, 1988) The Comptroller General has
agreed with our conclusion that Congress did not intend the statutory term “session” to be read narrow­
ly to refer only to the formal sessions o f Congress: “the term ‘termination o f the session’ [has] ... been
used by the Congress in the sense of any acyoumment, whether final or not, in contemplation o f a recess
covering a substantial period o f time " 28 Comp Gen. 30, 37 (1948).

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refused to report favorably to the full Senate and refused to send to the
floor is still “pending before the Senate for its advice and consent.”4 To
our knowledge there is neither caselaw nor relevant legislative history on
this specific question. We believe, however, that a nomination must be
regarded as having been “pending before the Senate” if, under any cir­
cumstance, the Senate could have acted on the nomination. Under this
common- sense interpretation, a nomination that was not reported out o f
committee, and which was neither acted upon by the full Senate follow­
ing an order o f discharge nor returned to the President by the Senate,
would have been “pending before the Senate” at the end of the session.
   The Senate has the inherent power to discharge from a committee any
matter it wishes including nominations as recognized by Senate Rule XVII
4(a). Thus, any nomination that a committee refused to vote out for floor
consideration would have been subject to discharge and consideration by
the full Senate. Given this, we believe that such a nomination would have
been “pending before the Senate” for purposes of section 5503(a)(2).
   Senate Rule XXXI clearly supports this interpretation o f the term
“pending before the Senate.” Under this rule, there are two circumstances
in which the President must resubmit a nomination if it is to be consid­
ered: (1) where a nomination has been voted on by the full Senate and
rejected, and (2) where a nomination has been returned. In both circum­
stances, the President is notified, either by notification of the vote, or by
his receipt o f the returned nomination. The rules o f the Senate nowhere
state or even suggest that the President must resubmit a nomination not
reported out, and there is no provision for notifying the President that he
must do so. The clear inference from this rule is that a nomination that a
committee refuses to report to the floor, but that has not been returned
to the President, remains pending before the Senate.
   The Senate rules provide that “at the time o f taking [an] adjournment”
for more than 30 days, all nominations are to be returned to the President
and will not be reconsidered unless resubmitted by him. Senate Rule
XXXI(6).5 It might be argued that upon return to the President under this
rule, a nomination is no longer pending before the Senate. Even were this
the case, however, a recess appointee whose nomination the committee


  4 Under a similar provision in the annual Treasury Department and Postal Service appropriations bill,
compensation is prohibited when the Senate, as opposed to a particular Senate committee, has voted not
to approve a nomination Section 606 o f the appropriations bill provides: “No part o f any appropriation
for the current fiscal year contained in this or any other Act shall be paid to any person for the filling o f
any position for which he or she has been nominated after the Senate has voted not to approve the nom­
ination o f said person " Treasury, Postal Service and General Government Appropriations Act o f 1989,
Pub L. No 100-440, § 606, 102 Stat. 1721, 1752 (1988). Because the full Senate has not voted on the nom­
ination at issue, this provision is clearly inapplicable
  5Senate Rule XXXI(6) provides that nominations “neither confirmed nor rejected dunng the session at
which they are made” and nominations “pending and not finally acted upon at the time o f [an} adjourn­
ment or recess [of more than 30 daysj shall be returned by the Secretary to the President” and will not
be reconsidered unless resubmitted by the President (Emphasis added )

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refused to report out to the full Senate and whose nomination was
returned pursuant to the rule would not be prohibited from receiving
compensation under section 5503. Since nominations may be returned
pursuant to rule XXXI only if they were “pending ... at the time o f ...
adjournment or recess” from session, any nomination returned pursuant
to the rule would necessarily have been returned after the end of the ses­
sion, and thus would have been pending at the end of the session. Thus,
the subsection (a)(2) requirement that the nomination have been “pend­
ing at the end o f the session” would be satisfied.
   In sum, we do not believe that the committee’s split vote on the nomi­
nee or the return o f the nomination pursuant to Senate Rule XXXI would
alter the status o f the nomination as “pending before the Senate for its
advice and consent” “at the end o f the session” for purposes of section
5503. Therefore, subsection (a)(2) would permit a recess appointee to be
paid a salary during the pendency of his recess appointment.6

                                      III. CONCLUSION

   We conclude that the President may exercise his power under the
Recess Appointments Clause during the August 1989 recess. We also con­
clude that when a Senate committee has voted not to send a nomination
to the floor, and the Senate has not discharged the nomination from com­
mittee or returned it to the President prior to adjournment, the nomina­
tion was “pending before the Senate for its advice and consent” for pur­
poses o f 5 U.S.C. § 5503(a)(2), and thus the recess appointee would not
be prohibited from being paid a salary during the course o f his recess
appointment.

                                                              J. MICHAEL LUTTIG
                                                   Acting Assistant Attorney General
                                                        Office o f Legal Counsel




   6 If the statute were to preclude the President from paying a recess appointee in these circumstances,
it would raise serious constitutional problems because o f the significant burden that an inability to com­
pensate an appointee would place on the textually committed power o f the President to make recess
appointments See Public Citizen v United States Department o f Justice, 491 U.S. 440, 482 (1989)
(Kennedy, J., concurring).

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