Calvin Coolidge on the Recess Appointment Power

March 21st, 2013

I am really enjoying Amity Shales’s new book on President Calvin Coolidge. This bit on the blocking of Presidential appointments seems timely:

When the time came to vote, the Senators present were indeed divided, 40-40 [JB: there were a total of 96 Senators at the time]. But the tie-breaker, the vice president, was not there. Dawes, having been assured the vote would not take place in the next few hours, had gone home to the Willard for a nap. By the time Dawes was roused and had raced the fifteen blocks back in a taxicab, the vote count had changed. Warren was defeated 41-39. President Coolidge thus suffered a humiliation that more than matched anything he had endured in the previous term: Dawes’s error made him the first president since Andre Johnson to see a cabinet confirmation killed by the Senate.

Again Warren was promptly rejected. Coolidge also invited Warren to lunch on Saturday, March 14. Then he swore to given Warren a recess appointment. In response, Senator Joe Robinson, the minority leader, swore to keep the Senate in session for the sole aim of hindering such events.

Nothing new under the son.

The OLC memo (which Judge Sentelle disagreed with), cited to Coolidge’s use of the appointment power during intrasession recesses.

But as intrasession recesses became common, so too did intrasession recess appointments. President Johnson is believed to have made the first intrasession recess appointments in 1867. Henry B. Hogue, The Law: Recess Appointments to Article III Courts, 34 Presidential Stud. Q. 656, 666 (2004).8 “The length of the recess may have triggered the appointments, because none of the intrasession recesses taken by the Senate until that time had lasted more than 15 days.” Id. Presidents Harding and Coolidge each made intrasession recess appointments in the 1920s (during recesses of twenty-eight and fourteen days, respectively),

At Point of Order, Michael Stern parries:

I don’t know anything more about Harding’s appointment, but Coolidge’s recess appointment was of a gentleman by the name of John J. Esch. After Congress convened on December 5, 1927, it adjourned from December 21, 1927 to January 4, 1928. Coolidge recess appointed Esch to the ICC on January 3, 1928.

Under the multi-session recess appointment theory, Esch’s appointment would have lasted until the end of the “next session” of Congress, which convened on December 3, 1928 and ended on March 3, 1929. However, according to this Wikipedia entry, “Esch’s recess appointment ended with the close of Congress’s term on May 29, 1928, and he left the Commission.”

This is further evidence that the Daugherty opinion was neither intended nor interpreted to validate “intrasession” recess appointments that would span more that one congressional session.