Recess Appointments: Does the Constitution Mean What It Says?

On April 9, 2003, President George W. Bush nominated William H. Pryor, Jr., to the United States Court of Appeals for the Eleventh Circuit. His confirmation stalled in the Senate when many interest groups objected to his views on various matters. With the nomination languishing in the United States

Senate, Congress adjourned for twelve days in mid-February 2004, taking advantage of the Presidents' Day holiday weekend. During the congressional recess period, President Bush used his recess-appointment power to install Pryor as judge, thus bypassing the confirmation process in the U.S. Senate. Pryor then resigned his position as attorney general for the state of Alabama and took his judicial oath for a term lasting until the end of 2006, when the next Congress begins.

The Senate eventually confirmed Pryor as a judge. However, prior to his confirmation, the plaintiffs challenged the authority of the president to make this type of recess appointment. In Evans v. Stephens, 387 F.3d.1220 (2004), a divided en banc Eleventh Circuit rejected the plaintiffs' contentions and, with majority and dissenters differing on the plain meaning of the United States Constitution, upheld the appointment of their colleague, Judge Pryor.

Writing for the majority, Chief Judge J. L. Edmondson relied on text, intent, historical practice, and precedent to support the constitutionality of the appointment. First, he focused on the language of Article II, Section 2, Clause 3. The court noted that the Constitution specifically says 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," and that "Vacancies" refers to "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." To the majority, the plain meaning of this clause was that the President is allowed to make temporary recess appointments to these offices, including all Article III courts, such as the United States Circuit Courts of Appeals, without Senate approval.

The court then went on to observe that since the beginning of the republic, presidents have made over 300 recess appointments to the federal judiciary, including fifteen to the United States Supreme Court. As there is no explicit reference in the Constitution to any limitation of powers of recess appointees, they have the same authority as those judges nominated and confirmed by the Senate, with the sole important exception and limitation that their term expires at the end of the next congressional session. The court found additional support for its position in two prior cases from the Second and Ninth Circuits, both of which had accepted the view that the recess-appointment power includes appointments to Article III courts.

The next issue addressed was the meaning of "recess." The plaintiffs and the dissent argued that a "recess" did not mean a ten- or eleven-day "intrasession" vacation but rather referred to a longer "intersession" break, when there would be a significant need for government continuity and the administration of justice that would be severely hampered waiting for Congress to return.

The majority, however, disputed this view, holding that there is no express language to support this interpretation of recess. The court held that the phrase "the Recess of the Senate" does not limit the president to intersession as opposed to intrasession recesses. There is no language referring to any minimum time in these clauses, and presidents have several times made appointments during intrasession recesses even shorter than that in which the Pryor appointment was made.

Finally, the court discussed the meaning of the phrase "Vacancies that may happen during the Recess." The plaintiffs had argued that the plain meaning of this phrase is that the vacancy must occur during the recess for the president to exercise the recessappointment power. The court, however, dismissed this argument. While conceding that the phrase could have meant what the plaintiffs suggest, the court held that an equally valid interpretation was that a vacancy has already occurred. The court suggests that this latter understanding has been an accepted interpretation, as since presidents have made many recess appointments to vacancies that occurred before the recess, and Congress has never challenged these types of recess appointments.

There were two dissents to Chief Judge Edmondson's majority opinion. The first, by Judge Rosemary Barkett, challenged the interpretations of the recess-appointment clause proffered by the majority, highlighting the difficulty of interpreting the text of a document that is more than 200 years old. Judge Barkett challenged the majority's assertion that where the language is susceptible to different interpretations, the court should defer to historical practice and the preferences of the other branches of government. First, Barkett challenged the majority's assertion that a vacancy can occur before the actual recess. According to the judge, the plain meaning of the recess-appointments clause "directly, expressly and unambiguously" required that the vacancy occur during the recess. The dissent stressed that the Constitution expressly says that the recess-appointments clause applies to "Vacancies that may happen during (emphasis in dissent) the Recess of the Senate" and not vacancies "that may exist (emphasis in dissent) during the Recess of the Senate." Barkett supported her contention by pointing out that the original Constitution had an additional recessappointment clause in Article I dealing with Senate vacancies. The clause, which has been superseded by the Seventeenth Amendment, expressly permitted temporary appointments when vacancies happen "during the Recess of the Legislature of Any State." Barkett argued that there is no reason to suggest that framers would mean one thing in Article I and something else in Article II.

Next, the dissent analyzed the question of when the president can make a recess appointment. Disputing the majority's deference to historical practice when there is some ambiguity in the language of the Constitution, Barkett argued that the intent of the framers, as evidenced by Alexander Hamilton in the Federalist Papers and Justice Joseph Story's early nineteenth-century treatise, was that the purpose of the recess-appointment power was to enable the president to fill vacancies when the Senate was not able to act on the appointments, so that the operations of government and the administration of justice could be furthered. Thus, the recess-appointment power was meant only for intersession, not intrasession, recesses. Otherwise, Judge Barkett argued, there would be nothing to prevent the president from repeatedly circumventing the Senate's advise and consent role.

In another dissent, Judge Charles R. Wilson reasoned that the majority and Judge Barkett were wrong even to reach the merits of the issue. Judge Wilson's point was simply that the Eleventh Circuit should decline to exercise jurisdiction and should instead certify the question to the United States Supreme Court. Judge Wilson expressed two concerns in ruling on matters concerning a colleague. The first is the damage to the collegiality of the court. While the question before the court was the constitutionality of the appointment, it was inescapable, he thought, that a vote against the appointment would be a vote against Judge Pryor's membership on the court. Because of this potential for personal impact, the court would have better served itself, he thought, by avoiding the necessity of arriving at a decision.

Second, Judge Wilson was concerned with the risk to public confidence. As Judge Pryor had participated in almost 300 appeals and authored over 40 published and nonpublished opinions, granting the motion would imply that Judge Pryor was not qualified to sit on these other matters because he was not properly appointed, but denying the motion might lead to a questioning of the motives of the judges in that the court was more concerned with protecting a colleague than advancing the administration of justice.

The case shows the difficulty of recess appointments, particularly when the appointed judge sits on the very court deciding the constitutionality of the appointment. The majority and the Barkett dissent differed on the interpretation of language, text, intent, historical practice, and even precedent. Perhaps Judge Wilson offered the wisest course in seeking to certify the question to the Supreme Court of the United States.