Chairman of the Senate Conferees, stated that he and his colleagues had no objection to the House-passed holdover provision. In response, Representative Wayne Hays, Chairman of the House Conferees, replied that "it is not a matter of great significance. It is a usual thing to appoint someone until a successor is appointed and qualified." Transcript of meeting of April 7, 1976, of House-Senate Conferees, pp. 8-9. Very little can be read into that unadorned and almost offhand statement. It was not made in the context of a discussion regarding recess appointments but merely explained that the House had included a holdover provision, presumably well familiar to the members of the Conference.
The Court finds it difficult to believe that, had the Congress intended to take the significant step of attempting to curtail the President's constitutional recess appointment power, or even to legislate in the area of that power, it would not have considered the matter with more deliberation or failed to declare its purpose with greater directness and precision. No such deliberation or direction can be found in this legislative history.
Plaintiff suggests that the words of Chairman Hays at a minimum incorporate by reference provisions in other holdover statutes which allow officials to continue in office until their successors are "appointed and qualified." The language Congressman Hays used was not incorporated into the statute itself, but clause (a)(2)(B) instead uses the less compelling words that a member of the Commission may continue to serve "until his successor has taken office." One might well conclude that, by omitting the usual language "until a successor is appointed and qualified," Congress contemplated the recess appointment problem and explicitly meant to authorize such appointments. But that, too, would be reading too much into Chairman Hays' statement. It appears to the Court that he, and the Congress generally, intended by the inclusion of the holdover provision ultimately adopted to do no more nor less than to follow the customary law and practice with respect to holdovers and their successors.
That much said, however, the Court is unable to agree with plaintiff that the legislative histories of similar holdover provisions in other laws show that they were designed to preclude recess appointments. Plaintiff cites a number of statements in congressional committee reports on statutes which created various independent regulatory agencies, including the Interstate Commerce Commission, the Federal Trade Commission, the Civil Aeronautics Board, the Federal Power Commission, the Securities and Exchange Commission, and the Federal Communications Commission. Several of these committee reports make reference to holdover provisions, and there are statements indicating that it was the purpose of such provisions to prevent the disruption caused by vacancies and to provide the Senate with the opportunity to pass upon the nomination of a successor to the holdover member. E.g., S.Rep.No.589, 74th Cong., 1st Sess. 1 (1935) (Interstate Commerce Commission); H.R.Rep.No.1774, 75th Cong., 3rd Sess. 1 (1938) (Federal Trade Commission); H.R.Rep.No.2360, 85th Cong., 2d Sess. (Civil Aeronautics Board); H.R.Rep.No.1917, 86th Cong., 2d Sess. 2 (1960) (Federal Power Commission, Securities and Exchange Commission, Federal Communications Commission). However, in none of these reports is there any indication that the Committees considered, much less that they intended to rule out, the constitutionally-prescribed recess appointment option.
The thrust of all the comments is that continuity in office is important and that the disruption caused by prolonged vacancies should be avoided.
Considered in context, the various references to the Senate confirmation process amount to nothing more than acknowledgements that nomination and confirmation constitute the routine method of filling vacancies. They cannot be read more expansively to indicate that Congress sought by implication to rule out recess appointments in instances when they are constitutionally appropriate.
Of somewhat greater significance is a statement on the Senate floor by Senator Mark Hatfield, one of the principal opponents of the McGarry nomination, made as that nomination was being debated by the Senate on October 13, 1978, two days before the congressional adjournment. Senator Howard M. Metzenbaum, a proponent of McGarry, asked whether it was Senator Hatfield's view that "neither (McGarry nor another nominee to the Commission) can be confirmed during that session of the Senate and that they ought to be put over until January." Senator Hatfield replied that "it does not have to be put off until January . . . Article II, section 2 of the Constitution . . . provides the President with ample authority, power, and direction to make recess appointments. Recess appointments would carry through the whole of the first year of the new session of the Congress. . . ." 124 Cong.Rec. S19057. That comment has some significance, if only because it directly addresses the recess appointment issue, and because it is at least open to conjecture that it may have led the Senate majority to refrain from seeking to override the opposition of Senator Hatfield and other opponents of McGarry to a vote on his nomination during that session of the Congress. However, while of some value in these respects, this remark by a single Senator is likewise too slender a reed upon which to rest a definitive construction of this law.
In seeking to construe the meaning of a statutory provision, it is often appropriate to accord great, even decisive, weight to the continuous practical construction accorded the provision by those who have the responsibility to administer it. See United States v. Midwest Oil Company, 236 U.S. 459, 472-3, 35 S. Ct. 309, 59 L. Ed. 673 (1915); Udall v. Tallman, 380 U.S. 1, 17, 85 S. Ct. 792, 13 L. Ed. 2d 616 (1965); McPherson v. Blacker, 146 U.S. 1, 36, 13 S. Ct. 3, 36 L. Ed. 869 (1892); Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309, 2 L. Ed. 115 (1803). Relying upon that rule, defendants claim that Presidents of the United States have consistently and continuously construed holdover language as raising no barrier to the exercise of their constitutional power under the Recess Appointments Clause, that this exercise of authority has never been challenged by the Congress or in the courts, and that this practice and usage should control the Court's decision in this instance.
According to the records maintained by the White House,
116 recess appointments (in addition to the McGarry appointment) have been made by Presidents to independent regulatory agencies since 1915. While that total is impressive, only twenty of these appointments were made to agencies whose governing statutes have holdover language similar to that involved here,
and in only two of these were the predecessor officials holding over at the time their successors were given recess appointments. Even with respect to the remaining two appointments, the practice is somewhat cloudy. In one of these two instances, a 1956 appointment to the Federal Trade Commission, the White House requested the holdover commissioner to submit a letter of resignation which that official refused to do, and a compromise was subsequently reached permitting him to remain in office for an additional two months in order to qualify him for a higher pension. In the other case, involving a 1972 appointment to the Interstate Commerce Commission, the holdover commissioner did leave his office following the recess appointment of his successor, but he did so under protest. (Graham and Cramer, Appointments to the Regulatory Agencies, pp. 90-91, 94th Cong., 2d Sess., Committee Print, April 1976; and affidavit of Donald Simon). In neither instance was there a judicial or other test of the legality of the recess appointment.
Thus, on the precise issue of the authority of the President to make a recess appointment where there is a holdover provision, the history of prior practice demonstrates primarily that various Presidents
have acted on the assumption that they have the power to make the appointments,
and that the Congress did not challenge this Presidential practice, such as by failure subsequently to confirm the successor or by amendment of the relevant laws. Since there were only two instances of a potential conflict between a holdover official and a new appointee, both of which were resolved in effect by a settlement, the matter never reached an actual adversary stage, by way of litigation or otherwise. Nevertheless, the lack of a challenge, either in the courts by someone with standing to complain, or by the Congress if it felt its prerogatives had been invaded, lends some, albeit not decisive, weight to defendants' ultimate position that McGarry's nomination is valid.
Additionally, the consistent and continuous practice directly contradicts plaintiff's theory on a somewhat narrower issue. As noted at pp. 590-591, Supra, it is a critical element of plaintiff's statutory analysis that a provision such as the one involved here, requiring nomination and confirmation, must be interpreted by necessary implication to exclude all vestiges of the President's recess appointment power. On that issue, all 116 recess appointments cited by the government have some "prior administrative practice" relevance, for the applicable statutes in terms required nomination and confirmation, without express reference to the recess appointment power. Yet recess appointments were made in all these instances, and in many of the cases the officials so appointed were subsequently nominated and confirmed, apparently without congressional challenge or protest concerning the procedure.
In the absence of judicial authority in the federal system, the parties rely on decisions by various state courts. In its several aspects and permutations the issue has arisen in the states on numerous occasions, but it is not possible from the precedents to formulate a uniform or consistent rule. The statutory provisions which the courts were construing were frequently not analogous or similar to those involved in this case, the powers of the chief executives with respect to recess appointments differed widely, and the results are by no means consistent.
For example, State ex rel. Ryan v. Bailey, 133 Conn. 40, 48 A.2d 229 (1946), and People ex rel. Baird v. Tilton, 37 Cal. 614, 621 (Cal.1869), directly hold that an official who is statutorily entitled to hold over may not be replaced by a recess appointment unless the successor is appointed and confirmed, while State v. Young, 137 La. 102, 68 So. 241 (1915), is squarely to the contrary. Decisions in other states lend more or less support to various aspects of plaintiff's
contentions. One commentator who surveyed the case law has aptly remarked (Davis, The Governors' Constitutional Powers of Appointment and Removal, 22 Minn.L.Rev. 451, 461-2 (1938)):
There is a wide split of authority on the main question whether there is a vacancy at the end of a term when there is a holdover provision, and no one has been selected to fill the office. Upholding the affirmative proposition that there is no vacancy because there is someone actually in the office, we find the states of California, Georgia, Indiana, Kansas, Maryland, Michigan, Missouri, Montana, New Jersey, New Mexico, North Carolina, Ohio, Oregon, Pennsylvania, South Carolina, Tennessee, Utah and Wyoming. In the opposing group, holding that there is a vacancy which the governor can fill, even though the holdover is still in office, there are the states of Colorado, Connecticut, Florida, Kentucky, Louisiana, Minnesota, Mississippi, Missouri and Texas. There is some doubt as to the proper place to put Mississippi, for there have been decisions on both sides, but the latest pronouncement of its court seems to place it in the second group. Missouri, likewise, has decisions on both sides of the question, but this is because of the question as to who has the power to make the subsequent appointment.
This question as to the nature and location of the appointing power is, I believe, the key to the whole situation. Those courts which hold that the governor cannot make the appointment state that the appointment must be made by the power who has the authority to make the original appointment, the governor and senate, the legislature, or some other individual or body, as the case may be. Those on the opposite side hold that it does not make any difference who this appointing power may be because there is a vacancy, and the governor has the power to fill vacancies. On the decision as to these two related points rests the whole difference of opinion that has been expressed. If there is no general or specific holdover provision that applies to a certain office, the weight of authority is that none will be implied, and that the governor can therefore make an appointment (citations omitted).