John D. Dingell, B-201035

Decision Date04 December 1980
Docket NumberB-201035
PartiesJOHN D. DINGELL, HOUSE OF REPRESENTATIVES:
CourtComptroller General of the United States
Precis-Unavailable

We refer to your letter of October 24, 1980, in which you present questions which arise out of the president's action in making recess appointments of five members of the board of directors of the United States synthetic fuels corporation.

Title i, part b of the energy security act (ACT), known as the United States synthetic fuels corporation act of 1980, public law 96-294, June 30, 1980, 94 Stat. 633, 611 established the United States synthetic fuels corporation (corporation). The purpose of the corporation is to stimulate production of synthetic fuels.

Section 113 of the act provides that part b shall take effect on the date of enactment. Section 116 of the act provides that the powers of the corporation shall be vested in the board of directors, except for those powers and duties vested in the chairman. Subsection 116(a)(2) further provides that the board of directors shall consist of a chairman and six other directors "appointed by the president by and with the advice and consent of the senate."

On October 1, 1980, pursuant to senate concurrent resolution 126, the senate adjourned for a recess until November 12 1980. At the time of adjournment the senate had not acted on any of the nominations to the board of directors which the president had submitted. On October 5, 1980, effective that day, the president announced recess appointments to the board of directors of five individuals whose nominations were pending before the senate.

You advise that on October 8, 1980, these five individuals held a meeting to conduct the business of the corporation and scheduled another meeting for October 27, 1980.

In view of the fact that these individuals have not been confirmed by the senate you have asked several questions concerning the legal status of their recess appointments and the validity of actions they have taken in the conduct of corporation business.

The presidents recess appointment authority

You ask whether the provisions of the vacancies act, 5 U.S.C. Secs 3345- 49, would provide the authority for these recess appointments. The vacancies act provides methods for the temporary filling of vacancies created by the death resignation, sickness, or absence of the head of an executive or military department or the head of a bureau thereof whose appointment is not vested in the head of the department. The vacancies act, by its express terms, contemplates the vacancy of an office by the person occupying the position as a condition precedent to the application of its provisions. Accordingly, we have held that the vacancies act does not apply to positions which have never been filled. B-150136 May 16, 1978, copy enclosed. As none of the positions on the board of directors of the corporation have ever been filled the provisions of the vacancies act are not for application. In addition, we note that the vacancies act is only applicable to an "executive department" and the corporation does not appear to fall within such definition. See 5 U.S.C. Sec. 101.

Because subsection 116(a)(2) of the act provides that the board of directors shall be appointed by the president by and with the advice and consent of the senate, you suggest that the board does not exist in the absence of appointments thereto confirmed by the senate. You ask what statutory authority the president has to make recess appointments to a body which has not yet been constituted.

We are not aware of any provision in the energy security act or any other statute which would give the president authority to make appointments to the board of directors of the corporation in a manner other than that provided for in section 116 of the act. The president's authority to make recess appointments derives from article ii, section 2 clause 3, of the constitution which provides as follows:

"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."

The appointments clause of the constitution, article ii, section 2, clause 2, provides as follows with regard to the appointments of officers:

"The president shall nominate, and by and with the advice and consent of the senate shall appoint *** all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law: but the congress May by law vest the appointments of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments."

Article ii, section 2, clause 3, is essentially a proviso to the appointments clause. Unlike the vacancies act, it does not restrict the president's authority to fill offices to those vacancies in offices which have previously been filled.

In 19 op. Atty. Gen. 261 (1889), the then attorney general held that the president's power to make recess appointments under article ii, section 2, clause 3, applies not only to vacancies which originate during recesses of the senate, but also to vacancies which May have arisen while the senate was in session. The attorney general held that the president had the power to make recess appointments where a new office had been created by act of congress, and existed during the session of the senate, which had not been filled before the close of the session. As stated by the attorney general at page 263:

"The word 'vacancy' in the constitution refers to offices, and signifies the condition where an office exists of which there is no incumbent. It is used without limitation as to how the vacancy comes to exist ***. In the case submitted the law has created the office. The office, therefore, exists. There is no incumbent. There is, therefore, a vacancy, and the case comes under the general power to fill vacancies ***."

In so concluding the attorney general relied on the rationale in 12 op. Atty. Gen. 32 (1866) wherein it had been held that the power to make recess appointments applies to vacancies which existed in the prior session of the senate and continue into the recess as well as to vacancies which originate during a recess of the senate. As stated by the attorney general in 12 op. Atty. Gen. 33 at 38 (1866):

"The true theory of the constitution in this particular seems to ME to be this: that as to the executive power it is always to be in action, or in capacity for action; and that to meet this necessity, there is a provision against *** vacancies in all the subordinate offices, and that at all times there is a power to fill such vacancies. It is the president whose duty it is to see that the vacancy is filled. If the senate is in session, they must assent to his nomination. If the senate is not in session, the president fills the vacancy alone ***. There is no reason upon which the power to fill a vacancy can be limited by the state of things when it first occurred. On the contrary, the only inquiry is as to the state of things when it is filled."

Thus, where an office has been created by law, the president May fill such office pursuant to article ii, section 2, clause 3, when the senate is in recess even though the newly created position has not previously been filled by and with the advice and consent of the senate. Section 113 of the energy security act provides that part b thereof, the United States synthetic fuels Corporation, shall take effect on the date of enactment (June 30, 1980). Subsection 115(a) provides that "there is hereby created the United States synthetic fuels corporation" and subsection 116(a)(1) provides that the powers of the corporation shall be vested in the board of directors, except those functions, powers, and duties vested in the chairman. Since the positions on the board of directors were created incident to the establishment of the corporation on June 30, 1980, it would appear that the vacancies in those positions come within the president's power to make recess appointments, insofar as the positions themselves are within the purview of the appointments clause.

The term "recess" not only refers to a formal termination of a session of the senate but also means any temporary adjournment protracted enough to prevent the senate from performing its function of advising and consenting to executive nominations in accordance with article ii, section 2, clause 2 of the constitution. See 33 op. Atty. Gen. 20, (1921) and 28 Comp.Gen. 30 (1948), copy enclosed. The attorney general has held that the president has the authority to make recess appointments during a 4-week adjournment of the senate and that the president is necessarily vested with a large, though not unlimited, discretion to determine when there is a real and genuine recess which makes it impossible for him to receive the advice and consent of the senate. 33 op. Atty. Gen. 20 supra. Accordingly, the senate's 6-week adjournment under senate concurrent resolution 126 would appear to be so protracted as to be a recess during which the president May make appointments to office under article ii, section 2, clause 3.

It should be noted that the commission issued pursuant to a recess appointment expires at the end of the senate's next session following the adjournment sine die. The recent recess was not sine die, as senate concurrent resolution 126 provides for a recess of the senate until wednesday November 12, 1980. Thus, appointments made by the president during that recess will expire at the end of the first session of the 97th congress, unless the president calls a special session of congress after the final adjournment of the 96th congress, 2d session. See 41 op. Atty. Gen. 463 at 470 (1960). However, as...

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