August 3, 1979

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 appointments under Article II, Section 2, Clause 3 of the Constitution' during the forthcoming recess of the Senate, that is expected to last from 

about August 2 until September 4, 1979. It is our opinion that the President has this power.

A preliminary question is whether the President’s authority to make appointments under this clause, commonly called “ recess appointments,” 

applies to all vacancies that exist during a recess of the Senate or whether it 

is limited to those vacancies that arise during the recess. A long line of 

opinions of 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 of the Senate,” rather than as, “ may 

happen to occur during the recess of the Senate.” The President’s power 

to make recess appointments thus is not limited to those vacancies that occurred after the Senate went into recess, but extends to all vacancies existing during the recess regardless of the time when they arose. It should be 

noted, however, that where a vacancy existed while the senate was in session, the recipient of the recess appointment may be paid for his services 

only if the conditions of 5 U.S.C. § 5503 have been met. We discuss this 

matter in more detail later in this opinion.

79-57 MEMORANDUM OPINION FOR THE

COUNSEL TO THE PRESIDENT

'Article II, § 2, cl. 3, 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.

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The question whether an intrasession recess of the Senate constitutes a 

recess within the meaning of Article II, Section 2, Clause 3, of the Constitution 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 during which the President could make recess appointments. 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 of 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 adjournment, 

and it applied the definition of a recess as described by the Senate 

Judiciary Committee in its report of March 2, 1905:

the period of time when the senate is not sitting in regular or extraordinary session as a branch o f the Congress, or in extraordinary session fo r the discharge o f executive functions; when its 

members owe no duty of attendance; when its Chamber is empty; 

when, because of its absence, it can not receive communications 

from the President or participate as a body in making appointments * * * . [S. Rept. 4389, 58th Cong., 3d sess., 1905; 39 

C o n g r e s s i o n a l Re 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 session” in the event of an adjournment lasting only 2 days, and he did not 

believe that an adjournment for 5 or even 10 days constituted the recess intended by the Constitution. He admitted that by “ the very nature of things 

the iine of demarcation cannot be accurately drawn.” He believed, nevertheless, that:

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 of the Senate. Every presumption is to be indulged in 

favor the validity of whatever action he may take. But there is a 

point, necessarily hard of definition, where palpable abuse of 

discretion might subject his appointment 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 ttorney 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 appointments during 

intrasession recesses lasting for about a month.

In the winter of 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 appointments during that recess, we advised against their making

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in the light of the warning in Attorney General Daughtery’s opinion. In 

connection with the Pocket Veto Clause of the Constitution, Article I, 

Section 7, Clause 2, the President, however, decided without awaiting our 

advice that the 6-day adjournment of the Senate constituted an adjournment which prevented the return of a Senate bill; hence, that he could 

pocket veto S. 3418, The Family Practice of Medicine Act. Senator Kennedy, who had voted in favor of the bill, thereupon sought a declaratory 

judgment that the bill had become law without the signature of the President 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 of the bill. The D.C. 

Circuit Court of Appeals held that the bill had become law. That decision 

was based on the considerations that the 6-day adjournment had not 

prevented the return of the bill on account of its short duration, and that it 

was an intrasession ad jo u rn m en t and “ ap p ro p riate arrangements * * * for receipt o f presidential messages” had been made. Kennedy v. Sampson, 511 F.(2d) 430, 442 (C.A.D.C. 1974). The decision rests 

on an extrapolation of Wright v. United States, 302 U.S. 583 (1938), but is 

inconsistent with important passages in the Pocket Veto Case, 279 U.S. 

655, 683-687 (1929), which considered such “ appropriate arrangements 

for the receipt of Presidential messages” to be ineffective. The executive 

branch did not, however, seek Supreme Court review of Kennedy.

As the result of Kennedy v. Sampson, President Ford indicated that he 

would not invoke the pocket veto power during an intrasession recess. 

Moreover, in view of the functional affinity between the pocket veto and 

recess appointment powers, Presidents during recent years have been hesitant to make recess appointments during intrasession recesses of the 

Senate.

We have carefully reexamined the pertinent opinions of the Attorneys 

General and have concluded that we should follow the opinions of Attorney 

General Daugherty and Acting Attorney General Walsh, which hold that 

the President is authorized to make recess appointments during a summer 

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 

Recess Appointment Clauses deal with similar situations, namely, the President’s powers while Congress is not in session, they, nevertheless, are not 

identical. The Pocket Veto Clause deals with an adjournm ent of the Congress that prevents the return of a bill, the Recess Appointment 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 of a pocket veto and of a 

recess appointment is different. A pocket veto is final. It kills the legislation absolutely and it can be revived only by resuming the legislative process from the beginning. A recess appointment, on the other hand, results 

only in the temporary filling of an office, and, as a practical matter,

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Congress can force the recess appointee to resign by rejecting his nomination. Pursuant to an annual appropriation rider, a rejection has the effect 

of cutting off his compensation.2 Finally, since, as pointed out above, 

Kennedy v. Sampson is in conflict with an important aspect of the decision of the Supreme Court in the Pocket Veto Case, supra, we do not consider it the last word on the question whether the President may exercise 

his pocket veto power during an intrasession adjournment of a m onth’s 

duration.

Should the President decide to exercise his recess appointment power 

during the forthcoming recess of the Senate, the following technical points 

should be considered.

A. If the vacancy existed while the Senate was in session, the recess appointee can be compensated pursuant to 5 U.S.C. § 5503, only if: the 

vacancy arose within 30 days of the end of the session of the Senate, or, if 

a nomination for the office was pending before the Senate at the end of the 

session, or if a nomination for the office was rejected by the Senate within 

30 days before the end of the session. In addition, a nomination to fill the 

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 nomination need be submitted where the vacancy occurred during the recess of the 

Senate.

B. A recess appointment presupposes the existence of a vacancy. If 

there is an incumbent in office the recess appointment in itself does not effect a removal of 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 appointment 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.

L a r r y A . H a m m o n d

Acting Assistant Attorney General

Office o f Legal Counsel

’For the last pertinent statute, see Treasury, Postal Service and General Government A ppropriations Act, 1979, § 604 92 Stat. 1015.