As you may have heard, the United States Circuit Court for the District of Columbia recently used originalist analysis to hold that recess appointments that President Obama made to the NLRB violated the Recess Appointments Clause of the Constitution. All three of the judges on the panel held that the Clause permitted the president to make recess appointments only during inter-session recesses of the Senate. Two of the three judges also held that the president had the power to make recess appointments only when the vacancy arose during that recess (the third judge found it unnecessary to reach that issue).
For those of you interested in the subject - which should reach the Supremes fairly soon, I would think - I heartily recommend (in addition to the court's opinion), Lawprof Michael B. Rappaport's article The Original Meaning of the Recess Appointments Clause, which discusses both issues at length.
Both the D.C. Circuit and Prof. Rappaport discuss a July 7, 1792 opinion that Attorney General Edmund Randolph delivered to Secretary of State Thomas Jefferson, in which Randolph opined that both the text and the "Spirit" of the Constitution led to the conclusion that the president could not issue a commission during a recess unless the vacancy "happened" - that is, arose - during that recess. Because I like to see things for myself, I looked around and found that the printed text of Randolph's opinion does not appear to be readily available on the internet.
I did, however, discover that the Library of Congress site does have a copy of Randolph's original handwritten letter to Jefferson. Because the letter does not seem be available in easily readable form, I have transcribed it (as best I can) for your reading pleasure. The statute at issue in the opinion is An Act establishing a Mint, and regulating the Coins of the United States, enacted April 2, 1792. Section 1 of the Act established a "mint for the purpose of national coinage," and provided "that for the well conducting of the business of the said mint" there would be among other officers a "Chief Coiner."
As the opinion explains, no Chief Coiner was nominated by the president or approved by the Senate before the Senate recessed on May 8, 1792. In July Jefferson asked Randolph to provide an opinion on whether President Washington could make a recess appointment to the position.
Although the opinion indicates that there were good reasons why a Chief Coiner could not be nominated before the Senate recessed, it does not explain what those reasons were. My guess - and it is just a guess - is that the difficulty lay in finding a qualified candidate who could comply with Section 5 of the Act, which required the Chief Coiner to post a bond with the Secretary of the Treasury in the amount of $10,000, "with condition for the faithful and diligent performance of the duties of his office."
Here then is Randolph's opinion. Emphases are in the original:
I did, however, discover that the Library of Congress site does have a copy of Randolph's original handwritten letter to Jefferson. Because the letter does not seem be available in easily readable form, I have transcribed it (as best I can) for your reading pleasure. The statute at issue in the opinion is An Act establishing a Mint, and regulating the Coins of the United States, enacted April 2, 1792. Section 1 of the Act established a "mint for the purpose of national coinage," and provided "that for the well conducting of the business of the said mint" there would be among other officers a "Chief Coiner."
As the opinion explains, no Chief Coiner was nominated by the president or approved by the Senate before the Senate recessed on May 8, 1792. In July Jefferson asked Randolph to provide an opinion on whether President Washington could make a recess appointment to the position.
Although the opinion indicates that there were good reasons why a Chief Coiner could not be nominated before the Senate recessed, it does not explain what those reasons were. My guess - and it is just a guess - is that the difficulty lay in finding a qualified candidate who could comply with Section 5 of the Act, which required the Chief Coiner to post a bond with the Secretary of the Treasury in the amount of $10,000, "with condition for the faithful and diligent performance of the duties of his office."
Here then is Randolph's opinion. Emphases are in the original:
The answer of the attorney general of the United States to the question propounded to him by the Secretary of State on the following case
By the constitution, the President shall nominate and by and with the advice and consent of the Senate shall appoint Ambassadors, &c, and all other officers of the United States whose appointments are not therein otherwise provided, and which shall be established by law. He has also power to fill up vacancies, that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session.
The act establishing a mint directs, that for the well conducting of the business there shall be among other officers a chief Coiner.
This act passed on the 2nd of April 1792 and the Senate which concurred was sitting daily from thence until the 8th of May following. But the chief Coiner was not nominated during their then sitting, tho' a Director was appointed.
The question is, whether the President can, constitutionally, during the now recess of the Senate grant to a chief Coiner a Commission which shall expire at the end of their next session
Is there a vacancy in the office of chief Coiner? An ofice is vacant when no officer is in the exercise of it. So that it is no less vacant when it has never been filled up, than it is upon the death or resignation of an Incumbent. The office of Chief Coiner is therefore vacant.
But is it a vacancy which has happened during the recess of the Senate? It is now the same and no other vacancy, than that, which existed on the 2nd of April 1792. It commenced therefore on that day or may be said to have happened on that day.
The Spirit of the Constitution favors the participation of the Senate in all appointments. But as it may be necessary oftentimes to fill up vacancies, when it may be inconvenient to summon the senate a temporary commission may be granted by the President. This power then is to be considered as an exception to the general participation of the Senate. It ought too to be interpreted strictly. For altho' I am well aware, that a chief Coiner for satisfactory reasons could not have been nominated during the last session of the Senate; yet every possible delicacy ought to be observed in transferring power from one order in government to another. It is true that the Senate may finally disapprove. But they are not left to a judgment absolutely free, when they are to condemn the appointment of a man actually in Office. In some instances indeed this must be the case; but it is in them a case of necessity only; as where the Officer has died, or resigned during the recess, or a person appointed during the Session shall not notify his refusal to accept, until the recess.
It may well be asked in what the power of now for the first time granting a temporary commission for this new office is distinguishable in principle from granting a commission to one person in consequence of another who has been approved by the Senate, refusing to accept the first appointment to a new office? Is not the Vacancy under these circumstances once which has never been filled up and therefore in the same predicament, as the Office of Coiner? However a refined construction may make the cases approach each other, they are different in their relation to the constitution. In the one, the Senate have had a full opportunity to shew their sense. In the other not. In the one the vacancy was filled up, as far as the President and Senate could go; and the Vacancy may be said to have happened during the Recess in consequence of the Refusal. In the other, not.
An analogy has been suggested to one between a Minister to foreign court and the appointment now under consideration. With much strength it has contended that a Minister may be appointed who, or whose mission was never mentioned to the Senate. But, mark the peculiar condition of Minister. The President is allowed by law to spend a limited sum on diplomatic appointments. No particular courts are designated; but they are consigned [?] by the Constitution to his [?]. The truth then is that independently of congress, or either house the President may at any time during the Recess declare the court and the grade. But this power would nugatory during the Recess if he could not also name the Person. How unlike is this example to that of the Coiner, in which the office can be created by congress alone; and in the appointment to which the Senate might have an opportunity, of concurring at the Session when the law was passed creating it?
My opinion upon the whole is, that the President cannot now grant a temporary commission to a Chief Coiner.
/s/ Edm. Randolph
July 7 1792
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