Recess Appointments During an Intrasession Recess

Recess Appointments During an Intrasession Recess

T he President may make interim recess appointments during an intrasession recess o f eighteen days.

January 14, 1992

M e m o r a n d u m O p i n io n f o r t h e D e p u t y C o u n s e l t o t h e P r e s id e n t

This memorandum responds to your request that this Office determine
whether the President may make appointments under the Recess Appoint­
ments Clause to the Federal Housing Finance Board (“FHFB”), the Legal
Services Corporation (“LSC”), and the office of the Chief Executive Officer
o f the Resolution Trust Corporation (“RTC”) during the current recess of the
Senate, which began on January 3, 1992 and will end on January 21, 1992.
We conclude that he may.
Common to all of these appointments is the issue whether the President
may make recess appointments during an intrasession recess of eighteen
days.1 Article II, Section 2, Clause 3 of the Constitution 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 o f their next Session.” The longstanding view of the Attorneys General
has been that the term “recess” includes intrasession recesses if they are of
substantial length. Attorney General Daugherty held in 1921 that the Presi­
dent had the power to make a recess appointment during a twenty-eight day
intrasession recess. He explained that recess appointments could be made
during any recess of such duration that the Senate could “not receive com ­
munications from the President or participate as a body in making appointments.”
33 Op. Att’y Gen. 20, 24 (1921) (quoting S. Rep. No. 4389, 58th Cong., 3d Sess.
1905; 39 Cong. Rec. 3823). According to Attorney General Daugherty, while
“the line of demarcation cannot be accurately drawn,” id. at 25,

' For practical purposes with respect to nominations, this recess closely resembles one of substantially
greater length. House Concurrent Resolution 260, enacted on November 27, 1991, provides that the
first session of the 102nd Congress stood adjourned until 11:55 a.m. on January 3, 1992, or until M em ­
bers were otherwise notified to reassemble. H. Con. Res. 260, I02d Cong., 1st Sess. (1991). It also
provides that "when the Congress convenes on January 3, 1992 . . . , the Senate shall not conduct any
organizational or legislative business and when it recesses or adjourns on that day, it stand in recess or
adjournm ent until 11:30 a.m. on Tuesday, January 21,1992 [or until otherwise notified to reassem ble].”
Id. Except for its brief formal session on January 3, then, the Senate will have been absent from
N ovem ber 27, 1991 until January 21, 1992, a period of fifty-four days.

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 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 of the validity of whatever action he may take.

Id. Attorney General Daugherty’s opinion has been cited with approval in
subsequent opinions of the Attorneys General, and has been relied on by the
Com ptroller General as well. See e.g., 41 Op. Att’y Gen. 463, 468 (1960);
28 Comp. Gen. 30, 34-36 (1948).
Past practice is consistent with exercise o f the recess appointment power
during an intrasession recess of eighteen days. President Coolidge made a
recess appointment during a fifteen day recess. Memorandum for the Coun­
sel to the President, from Leon Ulman, Deputy Assistant Attorney General,
Office of Legal Counsel at 3 (Dec. 3, 1971). In 1985 President Reagan
made recess appointments during an eighteen day intrasession recess. Memo­
randum to Files, from Herman Marcuse, Office of Legal Counsel (Jan. 28,
1985). Accordingly, we believe that the President may constitutionally make
recess appointments during the current intrasession recess.2
We next address the specific offices you have identified. All of the mem­
bers o f the Boards of Directors of the LSC and the FHFB had been serving
pursuant to recess appointments that expired when the First Session of the
102nd Congress ended on January 3, 1992. Those offices are thus now
vacant and the President may make recess appointments to them during the
current recess. See Permissibility o f Recess Appointments o f Directors o f the
Federal Housing Finance Board, 15 Op. O.L.C. 91 (1991); Memorandum for
John P. Schmitz, Deputy Counsel to the President, from Timothy E. Flanigan,
Special Assistant, Office of Legal Counsel (Oct. 17, 1990).
Finally, we believe that the President may recess appoint the Chief Ex­
ecutive Officer of the RTC. That office was created by section 201 of the
Resolution Trust Corporation Refinancing, Restructuring, and Improvement
Act of 1991, Pub. L. No. 102-233, 105 Stat. 1761 (“Act”), which the Presi­
dent signed on December 12, 1991. Although certain of the substantive
provisions of the Act do not take effect until February 1, 1992, see title III
of the Act, the provision creating the position of Chief Executive Officer is
not subject to any special effective date provision, and hence went into
effect upon enactment. The Attorneys General have long believed that the
President has the power to make an original recess appointment to a newly
created position. See 12 Op. A tt’y Gen. 455 (1868); 14 Op. Att’y Gen. 562
(1875); 18 Op. A tt’y Gen. 28 (1880), a position upheld in United States v.
A llocco, 305 F.2d 704, 713-14 (2d Cir. 1962), cert, denied, 371 U.S. 964

2 Attorney General Daugherty, however, suggested in 1921 that “an adjournment for 5 or even 10 days”
would not be sufficient “to constitute the recess intended by the Constitution.” 33 Op. Att’y Gen. at 25.

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(1963). The Office therefore now exists and is vacant for purposes o f the
Recess Appointments Clause.
In conclusion, we believe that the current recess constitutes a sufficient
period for the President to make the aforementioned recess appointments as
a matter of law. As a matter of policy, we suggest that the President make
the appointments as soon in the recess as possible.

TIMOTHY E. FLANIGAN
Acting Assistant Attorney General
Office o f Legal Counsel

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