minds of the framers of the Constitution. Their express declaration is to the contrary. The difficulty-if there is any-is in the use of the term "recess. We are accustomed to think of that term as meaning a short cessation from some regular occupation, a suspension of regular work for a short time. Had the Constitution said that "the President shall fill up all vacancies that may happen while the Senate is not in regular session, or during the adjournment of the Senate or between the adjournment of the Senate and its next regular meeting," there could hardly have been any doubt concerning what was meant. As it is, the term "recess" means the period of time between the adjournment of the session of the Senate and its next regular meeting. There are two regular adjournments of the Senate during each term of Congress. One is fixed by agreement between the two houses of Congress. The other is fixed by law. The "recess" refers to the time after each of these adjournments until Congress meets again.

"Recess of the Senate" does not mean the holiday adjournment of the Senate, and the President is not justified in making a recess appointment during that time.

The term "recess" was held by Attorney General Knox to mean "the period after the final adjournment of Congress for the session, and before the next session begins." Whereas, "an adjournment during a session of Congress means merely a temporary suspension of business from day to day, or, when exceeding three days, for such brief periods over holidays as are well recognized and established and as are agreed upon by the joint action of the two houses.' But it was held in Arkansas, the term recess was defined to mean the intermission between sittings of the same body at its regular or adjourned session, and not to the interval between the final adjournment of one body and the convening of another at the next regular session. (When applied to a legislative body, it means a temporary dismissal and not an adjournment sine die.)8

997

In the 58th Congress the Senate passed a resolution authorizing and instructing the judiciary committee of that

7 23 Op. A. G., 599–601.

8 Tipton v. Parker, 71 Ark. 193, 196.

body to report to the Senate what constitutes a "Recess of the Senate," and what are the powers and limitations of the Executive in making appointments in such cases. The committee, through its chairman, Senator Spooner, made the following report:

"The word 'recess' is one of ordinary, not technical signification, and it is evidently used in the constitutional provision in its common and popular sense. It means in Article 2 precisely what it means in Article 3, in which it is again used. Conferring power upon the executive of a State to make temporary appointment of a Senator, it says:

"And if vacancies happen, by resignation or otherwise, during the recess of the Legislature of any State, the executive thereof may make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancies.

"It means just what was meant by it in the Articles of Confederation, in which it is found in the following provision:

"The United States in Congress assembled shall have authority to appoint a committee to sit in the recess of Congress, to be denominated a committee of the States, and to consist of one delegate from each State.

"It was evidently intended by the framers of the Constitution that it should mean something real, not something imaginary; something actual, not something fictitious. They used the word as the mass of mankind then understood it and now understand it. It means, in our judgment, in this connection 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 participate as a body in making appointments.

"It is easy for a lawyer to comprehend the words "constructive appropriation," "constructive notice," "constructive fraud," "constructive contempt," "constructive damages," "constructive malice," but it would seem

quite difficult for lawyer or layman to comprehend a "constructive recess" of Congress, or of the state legislature, or of the Senate. It would seem quite as natural that there should be a "constructive session" of Congress or of the Senate as a "constructive recess." We think there cannot be any 66 'constructive end" of a session or a "constructive beginning" of a session of Congress or of the Senate.

"The Constitution clearly confers upon the President the power to nominate and, by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, "and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law." Congress in the same clause is empowered by law to "vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments.

"Human intention cannot be made plainer by human language" than it is made clear by the Constitution that except as to the "inferior officers" referred to no Federal officer can be appointed save by and with the advice and consent of the Senate.

"But it was obvious that without some provision for temporary appointments to fill up vacancies which might happen while the Senate was not in session to participate in making appointments, grave inconvenience and harm to the public interest would ensue. To meet this difficulty it was by common consent provided that—

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.

"This is essentially a proviso to the provision relative to appointments by and with the advice and consent of the Senate. It was carefully devised so as to accomplish the purpose in view, without in the slightest degree changing the policy of the Constitution, that such appointments are only to be made with the participation of the Senate. Its sole purpose was to render it certain that at all times there should be, whether the Senate was

in session or not, an officer for every office, entitled to discharge the duties thereof.

"It cannot by any possibility be deemed within the intent of the Constitution that when the Senate is in position to receive a nomination by the President, and therefore to exercise its function of advice and consent, the President can issue, without such advice and consent, commissions which will be lawful warrant for the assumption of the duties of a federal office.

"The framers of the Constitution were providing against a real danger to the public interest, not an imaginary one. They had in mind a period of time during which it would be harmful if an office were not filled; not a constructive, inferred or imputed recess, as opposed to an actual one.

"They gave power to issue these commissions only where a vacancy happened during a recess of the Senate, and they specifically provided that the commission should expire at the end of the next session of the Senate.

"The commissions granted during the recess prior to the convening of Congress in extraordinary session on November 9, 1903, of course furnished lawful warrant for the assumption by the persons named therein of the duties of the office to which they were commissioned. Their names were regularly sent to the Senate thereafter. If confirmed, of course they would hold under appointment initiated by the nomination without any regard to the recess commission. If not confirmed, their right to hold under the recess commission absolutely ended at 12 o'clock meridian on the 7th of December, 1903, for at that hour the extraordinary session ended and the regular session of Congress began by operation of law. An extraordinary session and a regular session cannot coexist, and the beginning of the regular session at 12 o'clock was the end of the extraordinary session; not a constructive end of it, but an actual end of it. At 12 o'clock, December 7, the President pro tempore of the Senate said:

"Senators, the hour provided by law for the meeting of the first regular session of the Fifty-eighth Congress having arrived, I declare the extraordinary session adjourned without day.

"Aside from the statement upon the record that the 'hour had struck' which marked the ending of the one

and the beginning of the other, the declaration of the President pro tempore was without efficacy. It did not operate to adjourn without day either the Congress or the Senate. Under the law the arrival of the hour did both.""' Where a commission is issued by the President during the recess of the Senate the appointee holds until the end of the succeeding session of Congress, notwithstanding the Senate may have rejected the nomination. But the acceptance of a new commission by the appointee would vacate the former one.10

Mutual relations of President and Senate as to recess appointments.-The Constitution confers upon the President the right to fill vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session. That is to say, an officer appointed by the President immediately after the recess of the Senate will hold until the Senate meets and then through the entire session of that body. The object of the Constitution in providing that the commission of such an appointee should not expire before the end of the session following his appointment was to give the Senate time to deliberate upon the appointment before confirming or rejecting it. Suppose the Senate

9 Senate Report, No. 4389, 58 Cong., 3 Sess.

10 2 Op. A. G., 336-339; In re Marshalship, 20 Fed. Rep., 379-382. Mr. Madison has made the following comment upon this provision: "If the text of the Constitution be taken literally, no municipal officer could be appointed by the President alone to a vacancy not originating in the recess of the Senate. It appears, however, that under the sanction of the maxim, 'qui haeret in litera hearet in cortice,' and of the 'argumentum ab inconvenienti,' the power has been understood to extend, in cases of necessity or urgency, to vacancies happening to exist in the recess of the Senate, though not coming into existence in the recess. In the case, for example, of an appointment to a vacancy by the President and Senate of a person dead at the time, but not known to be so till after the adjournment and dispersion of the Senate, it has been deemed within the reason of the constitutional provision that the vacancy should be filled by the President alone, the object of the provision being to prevent a failure in the execution of the laws, which without such a scope to the power must very inconveniently happen, more especially in so extensive a country. Other cases of like urgency may occur, such as an appointment by the President and Senate rendered abortive by a refusal to accept it." Madison's Writings, Vol. 4, 351.