TITLE:  ï¿½Duration of Recess Appointment, B-290712, August 14, 2002
BNUMBER:  B-290712
DATE:  August 14, 2002
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 Duration of Recess Appointment, B-290712, August 14, 2002

    
B-290712
    
    
August 14, 2002
    
    MACROBUTTON The Honorable Christopher J. Dodd
Chairman, Subcommittee on Western Hemisphere,
      Peace Corps, and Narcotics Affairs
Committee on Foreign Relations
United States Senate
    
Subject:  Duration of Recess Appointment
    
Dear Mr. Chairman:
    
This responds to your letter dated May 29, 2002, requesting our opinion
concerning the duration of the recess appointment of Mr. Otto J. Reich to
the position of Assistant Secretary of State for Western Hemisphere
Affairs.  For the reasons set forth below, we conclude that this recess
appointment, made before the start of the second session of the 107th
Congress, will expire at the end of the second session of the  107th
Congress.
    
BACKGROUND
    
On January 11, 2002, the President made a recess appointment of Mr. Reich
as Assistant Secretary of State for Western Hemisphere Affairs after both
Houses of the Congress had adjourned sine die[1] on December 20, 2001. 
Since the Senate had agreed to adjourn sine die, then the date specified
by the joint resolution,[2] December 20, 2001, marked the end of the
Senate session.  B-288581, Nov. 19, 2001.
    
On January 23, 2002, the Senate reconvened for the second session of the
107th Congress.  Pub. L. No. 107-98, Dec. 21, 2001, 115 Stat. 961.  Thus,
Mr. Reich received his recess appointment during an intersession recess,
when the last formal session of the Senate had ended and the next formal
session of the Senate had not yet commenced.  You asked for our opinion
regarding the duration of Mr. Reich's recess appointment.
    
DISCUSSION
    
The power of the President to appoint officers during a recess of the
Senate is contained in the United States Constitution, and the recess
appointments clause of the Constitution states: *The President shall have
Power to fill up all Vacancies that may happen during the Recess of the
Senate, by granting Commissions which shall expire at the End of their
next Session.*  U.S. Const. art. II, S: 2, cl. 3.  The duration of Mr.
Reich's recess appointment depends on the meaning of the term *next
session* in the recess appointments clause.  Courts start with the plain
meaning of statutes in interpreting the law.  Mallard v. United States
District Court, 490 U.S. 296, 300 (1989); cf. Perpich v. Dep't of Defense,
496 U.S. 334, 339-340 (1990) (Supreme Court used plain language to
interpret Article I of the Constitution).
    
When Mr. Reich was appointed on January 11, 2002, the Senate had not yet
begun its second session of the 107th Congress.  In this context, the
plain meaning of the language *next session* can only be the second
session of the 107th Congress.  When the Senate reconvened on January 23,
2002, it began the *next session* within the meaning of the recess
appointments clause.  We have held that a commission issued pursuant to a
recess appointment expires at the end of the Senate's next session
following the adjournment sine die.  B-201035, Dec. 4, 1980.  Where, as
here, a recess appointment was made during an intersession recess, the
duration of the appointment only continues until the end of the session
that was about to commence.  See United States v. Woodley, 751 F.2d 1008,
1009 (9th Cir. 1985) (en banc), cert. denied, 475 U.S. 1048 (1986).
    
Similarly, the Department of Justice has interpreted the phrase *at the
End of their next Session* to mean the *adjournment sine die of the
session of the Senate for the first session of Congress that begins after
the designation was made.*  17 Op. Off. Legal Counsel 1 (1993), citing 41
Op. Att'y Gen. 463, 469-71 (1960); 6 Op. Off. Legal Counsel 585, 586-87
(1982).  The Department of State agrees that Mr. Reich's recess
appointment will expire at the end of the current session of the
Senate.[3]
    
Thus, for the purposes of Mr. Reich's January 11, 2002, appointment, the
second session of the 107th Congress is the *next session* indicated in
the recess appointments clause of the Constitution.  Since Mr. Reich
received a recess appointment prior to the commencement of the second
session of the 107th Congress, his appointment will expire when the Senate
adjourns at the end of the second session.  More specifically, the end of
the second session will be either upon the adjournment sine die of the
second session of the 107th Congress as established by concurrent
resolution (irrespective of any reserved right to reconvene), or, in the
absence of a concurrent resolution setting an adjournment sine die date,
immediately prior to the beginning of the first session of the 108th
Congress (January 3, 2003, or as otherwise provided[4]).  B-288581, Nov.
19, 2001.
    
If you have any questions concerning this letter, please feel free to
contact me at 202‑512-5400 or Ms. Susan A. Poling, Managing
Associate General Counsel, at         202-512-5644.  We are sending a copy
of this letter to the Secretary of State, the Ranking Minority Member of
the Subcommittee, and interested congressional committees.  The letter
will be available on GAO's home page at http://www.gao.gov.
    
Sincerely yours,
    
    
               signed
    
Anthony H. Gamboa
General Counsel
    
cc:  The Honorable Colin L. Powell, Secretary of State
    
    
    

    
    
    
    
    
    

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   [1]Adjournment sine die literally means adjournment without day, a
reference to the fact that the Houses are adjourning until the next
session of Congress and not to a specified date within the current session
of Congress.  See Black's Law Dictionary 1390 (7th ed. 1999) and
Congressional Research Service, *Lame Duck Sessions, 74th‑106th
Congress,* 98-872 GOV, at 1 (2001).
[2]H.R. Con. Res. 295, 107th Cong. (2001) (enacted).
[3] Letter from Christopher B. Burnham, Assistant Secretary for Resource
Management and Chief Financial Officer, Department of State, to Susan A.
Poling, Managing Associate General Counsel, GAO, July 8, 2002.
[4] *The Congress shall assemble at least once in every year, and such
meeting shall begin at noon on the 3rd day of January, unless they shall
by law appoint a different day.*  U.S. Const. Amend. XX, S: 2.