The Constitution establishes that the President "shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and counsels, 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." As a corollary to this general maxim, the Constitution provides further that "[t]he 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." The Recess Appointments Clause was adopted by the Constitutional Convention without dissent and without debate regarding the intent and scope of its terms. In Federalist No. 67, Alexander Hamilton refers to the recess appointment power as "nothing more than a supplement...for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate." It is generally accepted that the clause was designed to enable the President to ensure the unfettered operation of the government during periods when the Senate was not in session and therefore unable to perform its advice and consent function. In addition to fostering administrative continuity, Presidents have exercised authority under the Recess Appointments Clause for political purposes, appointing officials who might have difficulty securing Senate conformation. While the President's exercise of the recess appointment power in any context may give rise to controversy, the use of the Recess Appointments Clause to appoint judges to temporary positions on Article III courts has emerged as a particularly contentious political issue. Additionally, while the text of the Recess Appointments Clause does not differentiate between the appointment of judges and non-judges, the unique status of Article III judges gives rise to an inherent constitutional tension between the President's recess appointment authority and traditional notions of judicial independence, and has been the subject of recent litigation. Two fundamental textual issues inhere to any consideration of the Recess Appointments Clause. The first point of inquiry in this regard is what constitutes a vacancy "that may happen during the Recess of the Senate." If the term "happen" is interpreted as referring only to vacancies that occur during a recess, it necessarily follows that the President would lack authority to make a recess appointment to a vacancy that existed prior to the recess. Conversely, if "happen" is construed more broadly to encompass vacancies that exist during a recess, the President would be empowered to make a recess appointment to any vacant position, irrespective of whether the position became vacant prior to or during "the Recess of the Senate." While this issue was a source of controversy in the late eighteenth and early nineteenth centuries, a long line of Attorney General opinions and judicial decisions have adopted the broader interpretation of the clause. Attorney General William Wirt, serving under President Monroe, concluded that the phrase encompassed all vacancies that happen to exist during "the Recess," declaring that "[t]his seems to me the only construction of the Constitution which is compatible with its spirit, reason, and purpose." This interpretation was first adopted by a federal court in the 1880 decision In re Farrow , and has adhered in judicial opinions on the issue in the modern era. Similar interpretive difficulties adhere to the meaning of the phrase "the Recess of the Senate." An opinion issued by Attorney General Knox in 1901 concluded that the phrase applied only to adjournments between sessions of Congress (commonly referred to as "intersession" recesses). In reaching this determination, Knox placed significant weight on the use of the definite article "the" in the Recess Appointments Clause, emphasizing that "[i]t will be observed that the phrase is ' the recess.'" The opinion further concluded that if recess appointments were allowed during periods other than an intersession recess, nothing would prevent an appointment from being made "during any adjournment, as from Thursday or Friday until the following Monday." This position was abandoned in 1921 in an opinion issued by Attorney General Daugherty that declared that an appointment made during a 29 day recess was constitutional. The Daugherty opinion focused on the practical aspects of the recess appointment dynamic, stating that "[i]f the President's power of appointment is to be defeated because the Senate takes an adjournment to a specified date, the painful and inevitable result will be measurably to prevent the exercise of governmental functions." Further emphasizing this functional approach, the Daugherty opinion rejected the notion that this broader interpretation would authorize intrasession appointments during brief adjournments, declaring that "an adjournment for 5 or even 10 days [cannot] be said to constitute the recess intended by the Constitution. The opinion concluded by emphasizing that while "[e]very presumption is to be indulged in favor of the validity of whatever action [the President] may take..., there is a point, necessarily hard of definition, where palpable abuse of discretion might subject his appointment to review." Subsequent Attorney General and Department of Justice Office of Legal Counsel opinions have continued to support the constitutionality of intrasession recess appointments, with more recent pronouncements on the issue asserting that the clause encompasses all recesses in excess of three days. Since the early history of the Republic, Congress has established a statutory framework designed to protect the Senate's constitutional role in the confirmation process. For instance, the Federal Vacancies Reform Act of 1998 (which governs the filling of vacancies falling outside the scope of the Recess Appointments Clause) establishes which individuals may be designated by the President to temporarily perform the duties and functions of a vacant office and the length of time a designee may serve. The original version of the Vacancies Act was enacted in 1868, and the legislative roots of such provisions can be traced back to a 1795 enactment limiting the time a temporary assignee could hold office to six months. Regarding recess appointments specifically, 5 U.S.C. §5503, a successor to a provision originally enacted in 1863, establishes that if a vacancy existed while the Senate was in session a person subsequently appointed to that position during a recess may not receive his salary until he is confirmed by the Senate. Exceptions to this payment prohibition are provided (1) for appointees to vacancies that arise within 30 days of the recess; (2) for appointees to an office for which a nomination was pending at the time of the recess, so long as the nomination is not of an individual appointed during the preceding recess of the Senate; and (3) for appointees selected to an office where a nomination had been made but rejected by the Senate within 30 days of the recess, and the appointee was not the individual so rejected. Section 5503(b) provides that a nomination to fill a vacancy falling within any of the aforementioned exceptions must be submitted to the Senate not later than 40 days after the beginning of the next session of the Senate. Additionally, a provision has been included in all Treasury and General Governmental Appropriations Acts for over 60 years that prohibits the payment of the salary of any recess appointee whose nomination has been voted down by the Senate. The provisions governing recess appointments are designed to protect the Senate's advice and consent function by confining the recess appointment power of the President. By targeting the compensation of appointees as opposed to the President's recess appointment power itself, these limitations act as indirect controls on recess appointments, and their constitutionality has not been adjudicated. The court in Staebler v. Carter noted in dicta that "if any and all restrictions on the President's recess appointment power, however limited, are prohibited by the Constitution, 5 U.S.C. §5503...might also be invalid." Additional constitutional concerns might arise from the application of these provisions to judicial recess appointees. Presidents have made over 300 recess appointments to the federal judiciary, including twelve to the Supreme Court, since the first Administration of George Washington. The practice of making such appointments lessened considerably after the Eisenhower Administration, with only four judicial recess appointments having occurred since 1960. Despite the controversy attendant to judicial recess appointments, the President's authority to make such appointments has been challenged only in a handful of cases, and the Supreme Court has consistently declined the opportunity to hear the issue. The first legal challenge in this context arose from President Eisenhower's intersession recess appointment on August 17, 1955, of John M. Cashin as a U.S. district judge for the Southern District of New York. During his service as a recess appointee, Judge Cashin presided over the trial and conviction by jury of Dominic Allocco. On appeal, Alloco argued that his conviction and sentence should be set aside, on the basis that Judge Cashin was not constitutionally empowered to preside over the trial. In particular, Allocco argued that (a) the President lacks authority to appoint "temporary" judges; (b) if such appointments are permissible, "temporary" judges may not preside over criminal trials; and (c) the President lacks authority to fill vacancies in the judiciary that arise when the Senate is in session. Addressing these arguments in United States v. Allocco , the Court of Appeals for the Second Circuit began its analysis by stating that "[t]he recess power given to the President in Article II, Section 2, is expressly made applicable to 'all' vacancies; and the 'vacancies' are clearly vacancies in the offices described in the [Appointments Clause], which could otherwise be filled only with the advice and consent of the Senate." Based upon this construction, the court rejected the notion that judicial vacancies were implicitly excluded from the Recess Appointments Clause by virtue of the tenure and salary protections conferred upon judges in Article III. Accordingly, the court held that since the Recess Appointments Clause empowers the President to make recess appointments of judges, "it necessarily follows that such judicial officers may exercise the power granted to Article III courts."