         Presidential Authority to Make Recess Appointments
                     While Incumbents Hold Over
The President may make recess appointments to the Interstate Commerce Commission and to the
  Board of Directors of the Reconstruction Finance Corporation while members of those entities
  continue to serve in office under holdover statutes.

                                                                                      October 2, 1950

                    MEMORANDUM FOR THE DIRECTOR OF PERSONNEL
                      RECONSTRUCTION FINANCE CORPORATION*

   You request information as to whether the President may make recess appoint-
ments to the Interstate Commerce Commission and the Board of Directors of the
Reconstruction Finance Corporation in cases in which incumbents are still serving
under provisions of law which permit them to continue to serve until their
successors are appointed and qualified.
   The appointment, term, and qualifications of a member of the Interstate Com-
merce Commission are governed by the provisions of section 11 of title 49 of the
United States Code (1946). That section provides for terms of office of seven
years and that “[u]pon the expiration of his term of office a Commissioner shall
continue to serve until his successor is appointed and shall have qualified.”
   The appointment, qualifications, and tenure of directors of the Reconstruction
Finance Corporation, appointed on and after July 1, 1950, are controlled by 15
U.S.C. § 602 (1946 Supp. II) (codifying Act of May 25, 1948, Pub. L. No. 80-548,
§ 2, 62 Stat. 261, 262), which provides that the terms of the directors in office
when the Act of May 25, 1948 was enacted shall be extended until June 30, 1950,
and also provides, after initial staggered appointments, for terms of three years,
“but they may continue in office until their successors are appointed and quali-
fied.” Present incumbents now holding over, however, were appointed under a
previous statute (15 U.S.C. § 603 (1946) (codifying Pub. L. No. 72-2, § 3, 47 Stat.
5, 5–6 (Jan. 22, 1932)), which provided that “[t]he terms of the directors appointed
by the President of the United States shall be two years and run from January 22,
1932, and until their successors are appointed and qualified.”
   The authority of the President to make recess appointments is found in Arti-
cle II, Section 2, Clause 3 of the Constitution, which provides that “[t]he President


    *
      Editor’s Note: This memorandum was addressed to “the Honorable Donald S. Dawson,” without
indication of his office or title. At the time of this opinion, it appears that Mr. Dawson was serving as
Director of Personnel for the Reconstruction Finance Corporation—an inference supported by the fact
that the opinion addresses recess appointments to the Board of Directors of the Reconstruction Finance
Corporation. See Wolfgang Saxon, Donald Dawson, 97, Dies; Master of Truman Whistle-Stop, N.Y.
Times, Dec. 29, 2005, at A25, available at http://www.nytimes.com/2005/12/29/politics/29DAWSON.
html (last visited Aug. 24, 2012).




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    Presidential Authority to Make Recess Appointments While Incumbents Hold Over


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.”
    A number of decisions in the state courts have dealt with the question whether
expiration of the prescribed term, in the case of an officer authorized to hold over
until his successor is appointed and qualified, creates a vacancy. The decisions
have not been uniform as there are holdings both ways.
    No decision under the applicable provision of the federal Constitution has been
found. In a number of instances involving United States Marshals and United
States Attorneys affected by “hold over” provisions, recess appointments have
been given upon expiration of the prescribed term without, apparently, any formal
removal or resignation of the incumbent. See Memorandum for the Attorney
General, from George C. Todd, Assistant to the Attorney General, D.J. File
No. 175,594 (Dec. 21, 1914). These officers, by express provision of the law, hold
over until their successors are appointed and qualified. The question does not
appear to have been raised, however, as to whether a formal removal was neces-
sary.
    The President has removal authority with respect to a Director of the Recon-
struction Finance Corporation, who appears to be clearly an administrative officer
in the Executive Branch. Myers v. United States, 272 U.S. 52 (1926). Members of
the Interstate Commerce Commission, however, can probably be removed only
“for inefficiency, neglect of duty, or malfeasance in office.” 49 U.S.C. § 11; see
also Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935); Power of the Pres-
ident to Remove Members of the Tennessee Valley Authority from Office, 39 Op.
Att’y Gen. 145 (1938) (Jackson, A.G.). Thus, at least insofar as the Reconstruction
Finance Corporation is concerned, there is an analogy with the case of United
States Marshals.
    The Attorney General in District Attorney—Temporary Appointment, 16 Op.
Att’y Gen. 538 (1880) (Devens, A.G.), held that the President might make a recess
appointment to the office of United States Attorney even though the appointee of
the court as United States Attorney held the office. He stated that

      The authority given to fill the office to the circuit justice is an
      authority only to fill it until action is taken by the President. The
      office in no respect ceases to be vacant in the sense of the Constitu-
      tion because of this appointment, for the reason that the appointment
      itself contemplates only a temporary mode of having the duties of
      the office performed . . . .

Id. at 539–40. Likewise it may be said with respect to the commissioners of the
Interstate Commerce Commission that where they hold over under the statute after
their regular term, it is contemplated that such a holdover is only a temporary
mode of having the duties of the position performed and a vacancy does exist in



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              Supplemental Opinions of the Office of Legal Counsel in Volume 1


the sense of the Constitution. Indeed, the statutory authorization for an incumbent
to remain in office after the expiration of his term undoubtedly was provided for
the purpose of insuring that the duties of such important offices would not go
unattended, and obviously was not designed to nullify the provisions of law with
respect to the terms of such offices. If the expiration of the term of the individual
holding the office does not create a vacancy in the office, it would seem that the
President could not, without first removing the incumbent, send to the Senate a
nomination for the office.* Such, of course, is not the case and the President
frequently sends to the Senate a nomination for an office occupied by an incum-
bent whose term has expired. To hold that there is no vacancy, merely because the
incumbent, whose term has expired, is continuing to serve under statutory
authority, would lead to the result that no nomination or appointment could be
made until the incumbent resigned or died. Such a conclusion would render
entirely meaningless the express statutory provisions which limit the terms of the
offices in question to a specified number of years, and obviously is unsound.
    In a memorandum for the Attorney General by the Assistant to the Attorney
General George C. Todd of December 21, 1914, the question here under consider-
ation was discussed and the conclusion reached that there is a vacancy in office for
the purpose of a recess appointment under the circumstances indicated, as set forth
in the memorandum:

        John Lord O’Brian was appointed on March 4, 1909 for four years
        and until his successor should qualify. On December 1, 1914, the
        Senate being then in recess, the President appointed Mr. Lynn by a
        commission expiring at the end of the present session of the Senate.
        Mr. Lynn qualified on December 2, 1914. On December 7, 1914, the
        Senate convened, and on December 9, 1914, Mr. Lynn was nominat-
        ed for a full term. On December 14, 1914, the Senate rejected the
        nomination.

        The questions are:

            1. In view of the fact that Mr. Lynn’s predecessor did not resign
            and was not removed, but ceased to be District Attorney only be
            reason of the appointment and qualification of his successor, was
            there any “vacancy” within the meaning of the provision of the
            Constitution authorizing the President to “fill up all vacancies that
            may happen during the recess of the Senate?”



    *
      Editor’s Note: In Nominations for Prospective Vacancies on the Supreme Court, 10 Op. O.L.C.
108, 109 (1986), the Office reached a different conclusion, stating that “as a constitutional matter, no-
thing precludes the nomination and confirmation of a successor while the incumbent still holds office.”




                                                  466
     Presidential Authority to Make Recess Appointments While Incumbents Hold Over


        This objection to Mr. Lynn’s appointment would seem to be over-
        refined. Mr. O’Brian held office subject to the absolute power of the
        removal of the President. [In re Hennen, 38 U.S. (13 Pet.) 230, 259
        (1839); Blake v. United States, 103 U.S. (13 Otto) 227 (1880); Par-
        sons v. United States, 167 U.S. 324 (1897); Shurtleff v. United
        States, 189 U.S. 311 (1903).] The reasonable view would be that the
        action of the President in appointing a successor ipso facto created a
        vacancy in the office. It was equivalent to a removal.

Mr. Todd in this memorandum refers in supporting his conclusion to In re
Marshalship, 20 F. 379 (M.D. Ala. 1884), and to an opinion of the Comptroller of
the Treasury, 5 Comp. Gen. 594 (1926).
   In conclusion, it would appear that the President’s power to make recess ap-
pointments exists with respect to the positions here under consideration.*

                                                            PEYTON FORD
                                                         Deputy Attorney General




    *
      Editor’s Note: Apart from the sentence identified in the previous Editor’s Note, the Office contin-
ues to take the position articulated in this opinion. See Memorandum for Robert G. Damus, General
Counsel, Office of Management and Budget, from Beth Nolan, Deputy Assistant Attorney General,
Office of Legal Counsel, Re: Reporting Obligation under the Federal Vacancies Reform Act for PAS
Officers Serving Under Statutory Holdover Provisions (July 30, 1999) (“As a matter of constitutional
law, the executive branch consistently has taken the position that there is a vacancy for purposes of the
Recess Appointments Clause when an appointment for a term of years expires and the officer continues
serving under a holdover provision”).
    Federal courts, however, have taken conflicting positions on the issue. Compare Staebler v. Carter,
464 F. Supp. 585, 589 (D.D.C. 1979) (upholding recess appointment to position on Federal Election
Commission still occupied by incumbent, on ground that expiration of incumbent’s formal statutory
term created immediate vacancy), with Wilkinson v. Legal Servs. Corp., 865 F. Supp. 891, 900 (D.D.C.
1994) (invalidating termination of inspector general by recess appointees on Board of Directors of
Legal Services Corporation, on grounds that holdover provision in Legal Services Corporation Act was
mandatory and that Board positions were therefore not vacant at time of recess appointments), rev’d on
other grounds, 80 F.3d 535 (D.C. Cir. 1996); Mackie v. Clinton, 827 F. Supp. 56, 58 (D.D.C. 1993),
vacated as moot, Nos. 93-5287, 93-5289, 1994 WL 163761 (D.C. Cir.) (per curiam) (invalidating
recess appointment to position on Postal Service Board of Governors still occupied by incumbent, on
ground that statute entitled incumbent to hold position for one year after expiration of formal term). In
Swan v. Clinton, 100 F.3d 973, 986 (1996), the D.C. Circuit refused to infer tenure protection for
holdover members of the National Credit Union Administration “absent clear evidence that this was
Congress’ intent,” because doing so would “preclude[] the President from exercising [the] constitution-
ally granted power” of recess appointment.




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