One of the key issues involving the Recess Appointments Clause is the question when the vacancy has to arise: must it arise during the recess (the arise interpretation) or can it first arise at any time (the exist interpretation). To me, the language of the Recess Appointments Clause is clear on the subject: “The President shall have power to fill up all vacancies that may happen during the recess of the Senate.” It requires the vacancy to arise during the recess – that is, the arise interpretation.
Initially, proponents of the exist interpretation used to claim that the earliest Attorney Generals supported their position. But after I pointed out that the first Attorney General, Edmund Randolph, followed the arise interpretation, the advocates of the broad power have argued that the exist interpretation was at least adopted early – in 1823 by Attorney General Wirt. Thus, they claim a long pedigree for their view, even if not back to 1789.
Here, I want to argue that they should not be relying on the Wirt opinion. While it is true that that opinion does depart from the arise interpretation,” it does not support modern recess appointment practices. Rather, it condemns them.