Questions Concerning the President's Action in Making Recess Appointments

B-201035: Published: Dec 4, 1980. Publicly Released: Jun 4, 1985.

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The Energy Security Act established the U.S. Synthetic Fuels Corporation (SFC) to stimulate production of synthetic fuels. The powers of SFC are vested in the Board of Directors and its chairman. The Board consists of a chairman and six other directors appointed by the President, by and with the advice and consent of the Senate. During an adjournment of the Senate, the President announced recess appointments to the Board of Directors of five individuals whose nominations were pending before the Senate. These five individuals subsequently held a meeting to conduct the business of SFC and scheduled another meeting. The Vacancies Act did not provide the authority for these recess appointments as it does not apply to positions which have never been filled and is only applicable to an executive department, and SFC does not fall within this definition. The President's authority to make recess appointments is derived from the Constitution. An Attorney General Decision held that, where a new office has been created by an act of Congress and existed during the session of the Senate but was not filled before the close of the session, the President may make such an appointment. The President is vested with large, though not unlimited, discretion to determine when there is a real and genuine recess which makes it impossible for him to receive the advice and consent of the Senate. The Senate adjournment in question appeared to be so protracted as to be a recess during which the President could make appointments to office. The appointments which the President made will expire at the end of the first session of the 97th Congress. As SFC is a federal entity, the Directors on the Board are officers of the United States, and have substantial authority to carry out the act. They may provide financial assistance to private concerns to encourage the development of a means of producing synthetic fuels. SFC is authorized to exercise the federal power of eminent domain with regard to corporate construction projects. The recent meeting of the Board of Directors appears to have been a valid meeting and the actions taken by the Board were valid to the extent that they were within the Board's authority. GAO could not determine what notice, if any, was given of the meeting. However, lack of reasonable notice would not invalidate any of the actions taken by the Board.

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