Edmund Randolph’s Opinion on Recess Appointments
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 consent1 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 office 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 general2 participation of the Senate. It ought too to be interpreted3 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 office4 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?5 Is not the Vacancy under these circumstances one 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 me between a Minister to a foreign court and the appointment now under consideration. With much strength it has been contended that a Minister may be appointed who, or whose mission was never mentioned to the Senate. But mark the peculiar condition of a 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 pleasure. 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.6 But this power would be 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.
RC (DLC); in a clerk’s hand with signature and revisions by Randolph, the most important of which are noted below; endorsed by TJ.
For the provenance of this document, see note to Tobias Lear to TJ, 30 June 1792.
1. Preceding two words interlined by Randolph.
2. Word interlined by Randolph.
3. Word interlined by Randolph in place of “considered.”
4. At this point Randolph first interlined and then deleted: “to which no appointment has ever before been made.”
5. Preceding seven words interlined by Randolph.
6. Word written by Randolph.