Further Thoughts on “During the Recess”

A while ago, I wrote a post about the grammar of the Recess Appointments Clause, which began:

The Recess Appointments Clause, recall, says: “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.”

Several readers have asked about which verbs are modified by the phrase “during the Recess.” It has generally been thought that “during” modifies “happen” — and sensibly enough, since the two words are right next to one another. Yet it also has generally been thought that the President must make the appointments during the recess, too. One way (not the only way, but the most straightforward way) for that to be true is if the “during” clause modifies both sets of verbs — “happen” as well as “have/fill.”

Some commenters on this post have suggested that this is simply not possible as a matter of text. But it seems to me that one can think of other parallel sentences where it is indeed permissible, given the context and common sense, to think that the “during” clause modifies both sets of verbs. . . .

Professor Michael Herz has a new post up on Balkinization, responding to mine. It is a long post, which those interested probably ought to read in full, but here is the central claim:

Baude, Hartnett, and others have all posed the question as being whether “during the Recess” modifies only “Vacancies that may happen” or also “The President shall have the power to fill up.” But there is a third alternative. The phrase “during the Recess” could modify only “fill up” and simply not apply to “Vacancies that may happen” at all.

I would suggest that the clause can plausibly be read to mean: “The President shall have Power during the Recess of the Senate to fill up all Vacancies that may happen, by granting Commissions which shall expire at the End of their next Session.” So put, “that may happen” is untethered from “during the Recess” and simply means, in effect, “that might occur” or “that should arise,” regardless of when. The clause thus prescribes when vacancies may be filled and is simply silent about when they must arise. This reading does the useful work of plainly confining the President’s power to “the Recess” – something everyone, regardless of conflicting views on what counts as a recess, agrees the Clause should or must do, even while they struggle to get it to actually say that — and it avoids the difficulty of figuring out what “happen during the Recess” means.

Herz acknowledges that his is not the most natural reading of the Clause (though he does not think that mine is either). But he thinks that his is a plausible one, and the one most consistent with the Clause’s purposes. I am not sure I agree on either point.

I simply find it very difficult to read the phrase “during the recess …” as having nothing to do with “happen.” I don’t want to invoke the “rule of the last antecedent” but rather to say that it simply does not sound like idiomatic English to me (and there is little evidence that it sounded like idiomatic English at the Founding either).

Moreover, unless I am missing something, Herz’s reading also renders the phrase “that may happen” superfluous, since it means “that may happen any time” which is the same as leaving it off. Actually, it seems slightly worse than superfluous, since the superfluous phrase is sitting there right next to the phrase “during the recess …” causing everybody for the past 220 years to think (wrongly, on Herz’s view) that the phrases are related.

But perhaps the real work is being done by the Clause’s apparent purpose. Herz writes that “the problem the Framers wished to address” is “the absence of having an officer in place to perform statutorily assigned functions,” which “can be caused by a ‘vacancy’ that might have commenced either before or during ‘the Recess of the Senate.'” I think the purpose was slightly narrower — I agree with Attorney General Randolph’s assessment that the purpose was to fill those offices without unduly circumventing the Senate’s role; i.e., to temporarily fill those offices where the President had not had an opportunity to get the Senate’s consent.

A vacancy that arises during the session of Congress is generally one that could have been filled, if Congress or the Senate wanted to — by quickly confirming a nominee (staying around, if necessary, past the originally-planned date of adjournment), by passing legislation vesting the appointment in the President alone, or by passing legislation authorizing an “acting” appointment. It makes eminent sense for the Constitution not to grant recess appointment authority in such circumstances. Which is what it seems to say.