the complementary Recess Appointments Clause. Indeed, were this the sole provision of the LSC Act regarding membership on the Board, resolution of this claim would be relatively ministerial.
Two subsequent provisions of the LSC Act complicate this determination. First, the LSC Act provides that the "members of the Board shall not, by reason of such membership, be deemed officers or employees of the United States." 42 U.S.C. § 2996c(c). Plaintiff argues that this subsection removes the Board from the province of the Appointments Clause, which, by its own terms, applies only to "Officers of the United States." U.S. Const. Art. II, § 2, cl. 2.
This argument, despite its facial appeal, can be easily dismissed. The term "Officers of the United States" has constitutional significance in the Appointments Clause. Id. In contrast, there is no corresponding constitutional meaning to the term "employees" of the United States, and it is unlikely that Congress intended the word "officers" to be used in the constitutional sense when the word "employees" in the same phrase has no constitutional meaning. It is much more likely that 42 U.S.C. § 2996c(c) merely uses "officers" in the statutory sense, to limit the statutory benefits--as opposed to the constitutional rights--to which the members of the Board are entitled. See Dana v. McCalpin, No. 82-542 (D.D.C. Oct. 5, 1982), vacated as moot, 766 F.2d 575 (D.C. Cir. 1985); cf. National Treasury Employees Union v. Reagan, 214 U.S. App. D.C. 62, 663 F.2d 239, 246 (D.C. Cir. 1981).
A second provision of the LSC Act presents a problem that cannot be so easily resolved. The LSC Act limits the term of office for the Board members to three years, but then provides that "Each member of the Board shall continue to serve until the successor to such member has been appointed and qualified." 42 U.S.C. § 2996c(b). Plaintiff argues that this "holdover" provision prevents a recess appointment because the Recess Appointments Clause, by its own terms, depends upon the existence of "vacancies" and there are no "vacancies" on the LSC Board because the holdover Director rightfully occupies that position.
The Court, therefore, must determine whether the expiration of a statutory term of office for an LSC Director creates a "vacancy" to trigger application of the Recess Appointments Clause.
This determination properly begins with an examination of the constitutional text and history. If it is clear that the Framers intended the Recess Appointments Clause to provide the President sweeping appointment authority, then the LSC Act would be reviewed in this light. On the other hand, if the Framers intended the Recess Appointments Clause to be an emergency provision, the LSC Act would be evaluated accordingly.
It is difficult to ascertain the Framers' true intention in drafting the Recess Appointments Clause. There was little discussion and no debate on this provision at the Constitutional Convention. See 2 M. Farrand, Records of the Federal Convention of 1787 (rev. ed. 1966), at 533, 540, 574, 600 (cited in Staebler v. Carter, 464 F. Supp. 585, 596 (D.D.C. 1979)). The only references to this Clause are Alexander Hamilton's comments that it should be used for "temporary appointments" when "it might be necessary for the public service to fill [a vacancy] without delay" and that it was intended as a "supplement" to the Appointments Clause. Staebler, 464 F. Supp. at 596, 596 n.26 (quoting The Federalist No. 67 (Wesleyan ed. 1961) at 455).
The give-and-take between early Presidents and Congresses reveals the historic tension between the legislature and the executive over the power to make recess appointments.
To illustrate, it appears that President Washington sought and obtained Congress' permission before making recess appointments. See J. Harris, The Advice and Consent of the Senate 256 (1968) (cited in Recess Appointments, supra, at 197). This practice was not followed by subsequent Presidents, such as John Quincy Adams, Andrew Jackson and James Madison, frequently over congressional protestation. See Recess Appointments, supra, at 197-200.
The tension ultimately spawned the Army Appropriation Act of 1863,
which was reenacted as part of the Tenure of Office Act in 1867.
Id. at 201-02. The Tenure of Office Act entitled all civil government employees "to hold such office until a successor shall have been in like manner [by and with the advice and consent of the Senate] appointed and qualified." 14 Stat. 430 (1867).
Although the Tenure of Office Act was ultimately repealed, it was the precursor of numerous federal "holdover" provisions. In fact, there may be as many as sixty such provisions in the current United States Code. See, e.g., 5 U.S.C. § 1202(b) (Merit Systems Protection Board member "may continue to serve until a successor has been appointed and has qualified, except that such member may not continue to serve for more than one year after the date on which the term of the member would otherwise expire under this section"); 19 U.S.C. § 1330(b) (member of the International Trade Commission "may continue to serve . . . until his successor is appointed and qualified"); 16 U.S.C. § 792 (member of the Federal Power Commission "shall be appointed . . . until his successor is appointed and has qualified, except that he shall not so continue to serve beyond the expiration of the next session of Congress"); 49 U.S.C. § 10301 (Interstate Commerce Commission member "may continue to serve until a successor is appointed and qualified"); 15 U.S.C. § 41 (Federal Trade Commission member "upon the expiration of his term of office . . . shall continue to serve until his successor shall have been appointed and shall have qualified"); 15 U.S.C. § 78d(a) (member of the Securities and Exchange Commission "shall hold office . . . until his successor is appointed and has qualified, except that he shall not so continue to serve beyond the expiration of the next session of Congress").
Despite these numerous holdover provisions, there have been few judicial challenges in this context. The first challenge in the federal courts occurred in Staebler v. Carter, 464 F. Supp. 585 (D.D.C. 1979). In Staebler, Judge Harold Greene rejected the identical argument made in the instant case in the context of the Federal Election Campaign Act ("FEC Act"). Judge Greene first observed that plaintiff's argument was somewhat "circular" and stated that:
If that be the correct analysis, the creation of a vacancy and its extinction by the appointment of a successor always and inevitably occur at the same instant and by the same act (i.e., an affirmative vote on a nomination by the Senate). While in theory it is not impossible for the Congress to have devised this kind of a circular scheme, it certainly constitutes a somewhat implausible method for organizing governmental operations and for that reason should not be attributed to Congress in the absence of persuasive evidence that this is what was intended.