The constitutional text provides that the President may fill vacancies during “the Recess of the Senate.” That text “does not differentiate expressly between inter- and intrasession recesses.” Evans, 387 F.3d at 1224. As understood both at the time of the Framing and today, a “recess” is a “period of cessation from usual work.” 13 Oxford English Dictionary 322-323 (2d ed. 1989) (OED) (citing seventeenth- and eighteenthcentury sources); 2 Noah Webster, An American Dictionary of the English Language 51 (1828) (defining “recess” as a “[r]emission or suspension of business or procedure”); 2 Samuel Johnson, A Dictionary of the English Language s.v. “recess” (1755) (similar); Evans, 387 F.3d at 1224-1225. That definition is equally applicable to recesses between legislative sessions and recesses within those sessions.
In the legislative context, the Founding generation understood that the term “recess” included both inter-and intra-session recesses. That term was used to describe both kinds of breaks in British Parliamentary practice. See, e.g., 13 OED 323 (quoting reference to House of Commons request about an impending “Recess of this Parliament” that was intra-session); 33 H.L. Jour. 464 (Nov. 26, 1772) (King’s reference to a “Recess from Business” that was inter-session); Thomas Jefferson, A Manual of Parliamentary Practice § LI (2d ed. 1812) (describing a Parliamentary “recess by adjournment” as one occurring during an ongoing session). American legislative practice conformed to that understanding. For example, the Articles of Confederation empowered the Continental Congress to convene the Committee of the States “in the recess of Congress.” Articles of Confederation of 1781, Art. IX, Para. 5, and Art. X, Para. 1 (emphasis added). The one occasion on which that authority was exercised was an intra-session recess.3 Similarly, the Pennsylvania and Vermont Constitutions each authorized the state Executive to issue a trade embargo “in the recess” of the legislature. See Pa. Const. of 1776, § 20; Vt. Const. of 1777, Ch. II, § XVIII. Those provisions were both invoked during intra-session legislative recesses.4 And when the Constitutional Convention of 1787 adjourned on July 26 until August 6, some delegates, including the President of the Convention, referred to that intra-session period as “the recess.”5