Can a Maryland governor pull back a recess appointee's nomination before the Senate votes on it?

Plain-English summary

In early 1987, the President of the Maryland Senate asked the Attorney General whether Governor Schaefer had the authority to withdraw a nomination that his predecessor, Governor Hughes, had made for a recess appointee. The recess appointee in question had been named to the Workers' Compensation Commission during a Senate recess, then formally nominated to the Senate for the remainder of the statutory term. The new governor had asked that the nomination be withdrawn, then reconsidered, so the underlying legal question remained live even though it did not end up mattering in that particular case.

The Attorney General concluded that the Governor may withdraw the nomination of a recess appointee at any point before the Senate acts on it, whether the nomination was made by the current governor or an earlier one. The opinion traced the constitutional text of Article II, §11, which lets the Governor fill a vacancy during a Senate recess and then requires the Governor to send a nomination to the Senate for the remainder of the term. The opinion found nothing in that language, its 1851 constitutional convention history, or Maryland case law barring the Governor from later substituting a different nominee, so long as the Senate has not yet confirmed the pending name. Withdrawing the nomination does not remove the recess appointee from office; that person keeps serving out the recess appointment itself until the legislative session ends or a successor qualifies, whichever happens first.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could Maryland's governor in 1987 cancel a judicial or agency nominee that a previous governor had already sent to the Senate?
Yes, according to this opinion. The Attorney General found no legal difference between an incumbent governor withdrawing his own nomination and a successor governor withdrawing a predecessor's nomination, since the constitutional nominating power belongs to the office of Governor, not to the individual who happens to hold it.

Did withdrawing the nomination in this situation force the recess appointee out of the job right away?
No. The opinion explained that withdrawing a nomination only affects who will be confirmed for the remainder of the statutory term. The recess appointee continues serving under the original recess appointment until the General Assembly's session ends or a successor is qualified, whichever comes first.

What happens under this reasoning if the Senate rejects a recess appointee's nomination outright, rather than the Governor withdrawing it?
The opinion noted, citing its own past guidance, that the same result follows: the recess appointment ends at the adjournment of the Senate and the office becomes vacant, the same outcome as if the Governor had sent no nomination at all.

Background and statutory framework

Article II, §11 of the Maryland Constitution lets the Governor fill a vacancy that arises during a Senate recess by appointing a suitable person, whose commission lasts until the end of the next legislative session or until someone else is appointed to the office, whichever comes first. The same provision requires the Governor to send the name of the recess appointee, or of some other person in that appointee's place, to the Senate on the first day of its next regular session.

The opinion reviewed the debates of the 1851 constitutional convention that produced this language and found it was meant to balance two goals: letting the Governor keep government functioning during a lengthy Senate recess, while limiting how long an appointee could serve without Senate consent. Drawing on Maryland case law, including Kroh v. Smoot, the opinion explained that a recess appointee's commission never grants a right to hold the office beyond the term for which the appointee was originally commissioned. The opinion also relied on general principles recognized since Marbury v. Madison that a nomination not yet acted on by the Senate is a "completely voluntary" act of the executive that can be changed at will, and on out-of-state authority, particularly a Florida Supreme Court decision addressing an identical two-term recess-appointment structure, holding that an incoming governor may recall a predecessor's unconfirmed nomination and substitute a new one. The opinion found the same reasoning applies under Maryland's Constitution, and noted that if the Governor sends no name to the Senate at all, or the Senate rejects the nomination, the recess appointment simply ends at adjournment and the office becomes vacant.

Citations

Statutes:

• Article II, §11 of the Maryland Constitution (Governor's power to fill vacancies during a Senate recess and duty to submit a nomination)

Cases:

• Kroh v. Smoot, 62 Md. 172, 176 (1884)
• Sappington v. Slade, 91 Md. 640, 646 (1900)
• Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155 (1803)
• McChesney v. Sampson, 23 S.W.2d 584, 587 (Ky. 1930)
• In re Advisory Opinion to Governor, 247 So. 2d 428, 431, 433 (Fla. 1971)
• Burke v. Schmidt, 191 N.W.2d 281, 283 (S.D. 1971)
• Petition of Commission on Governorship of California, 603 P.2d 1357, 1364-66 (Cal. 1979)
• United States v. Woodley, 751 F.2d 1008, 1009 (9th Cir. 1985)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1987/Volume72_1987.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

PUBLIC OFFICERS

Public Officers—Governor—Constitutional Law—Recess Appointment—Governor May Withdraw Nomination of Recess Appointee.

April 2, 1987

The Honorable Thomas V. Mike Miller, Jr.
President of the Senate of Maryland

You have requested our opinion on the authority of the Governor to withdraw the nomination of a recess appointee. This question arose when it appeared that Governor Schaefer intended to withdraw the nomination of an appointee who was holding office under a recess appointment by Governor Hughes.1

For the reasons stated below, we conclude that the Governor may withdraw the nomination of a recess appointee.2

I
Background

On May 2, 1986, Governor Hughes appointed Jacques E. Leeds, Sr. to the Workers' Compensation Commission. See Article 101, §l(b) of the Maryland Code. Mr. Leeds was duly commissioned and qualified. In accordance with Article II, §11 of the Maryland Constitution, Governor Hughes submitted the name of Mr. Leeds to the Senate on January 14, 1987, and nominated him for the remainder of the unexpired 12-year term that commenced on February 1, 1979. On February 11, 1987, Governor Schaefer requested that Mr. Leeds be withdrawn from consideration. Subsequently, Governor Schaefer rescinded his withdrawal of the nomination and Mr. Leeds' appointment was confirmed by the Senate.

II
Constitutional Provision

Article II, §11 of the Maryland Constitution provides as follows:

"In case of any vacancy during the recess of the Senate, in any office which the Governor has power to fill, he shall appoint some suitable person to said office, whose commission shall continue in force until the end of the next session of the Legislature, or until some other person is appointed to the same office, whichever shall first occur; and the nomination of the person thus appointed during the recess, or of some other person in his place, shall be made to the Senate on the first day of the next regular meeting of the Senate."

This provision originated in the Constitution of 1851.3 We have examined the debates of the constitutional convention that drafted the language in question. Those who participated in the reported debates had two purposes in mind: to vest in the Governor sufficient authority to prevent any function of government from being disrupted by a vacancy during the lengthy recess of the Senate;4 and, at the same time, to limit the tenure of appointees who assumed office without the prior consent of the Senate. See 1 Debates and Proceedings of the Maryland Reform Convention to Revise the State Constitution 468-71, 499-505 (1851).

III
Initial Appointment and Nomination

Under Article II, §11, the Governor is free to appoint any "suitable person" to a vacancy that the Governor is empowered to fill. The appointment of that person assures that the office is filled until the Senate has an opportunity to act on the Governor's nomination for the remaining portion of the statutory term.

However, this initial appointment does not predetermine who the later nominee will be. Article II, §11 expressly preserves the Governor's discretion to nominate "some other person" in place of the recess appointee. As this office long ago concluded: "[U]nder Section 11 of Article II of the Constitution, the Governor does not have to nominate to the Senate the same person whom he appointed as the recess appointee to an office requiring Senate confirmation, but may nominate to the Senate some other person in his place." 21 Opinions of the Attorney General 281, 282 (1936).

Moreover, the Court of Appeals has held that the Governor's nomination of "the person thus appointed during the recess," rather than of "some other person in his place," does not necessarily mean that the recess appointee has been nominated to a term beyond that of the recess appointment itself:

"The Governor, in the early part of each session of the Legislature, sends to the Senate the names of those appointed to office to fill vacancies during the preceding recess; and if the Senate approve, the nominations are confirmed; but the party appointed, whether approved or disapproved by the Senate, continues to hold, by virtue of his commission, until some other person is appointed in his place, or until the end of the session of the Legislature, whichever may first occur. And it has never been understood or supposed that, by thus sending to the Senate the name of the party appointed during the recess and the confirmation of such appointment, the party acquired a right to hold the office beyond the period for which he was originally appointed and commissioned." Kroh v. Smoot, 62 Md. 172, 176 (1884).

"[T]he period for which he was originally appointed and commissioned" is limited by Article II, §11 to the end of the session of the General Assembly at the latest.

If the Governor intends to nominate the recess appointee to a term that extends beyond the end of the session, the Governor must manifest that intention. And, indeed, the nominations of recess appointees do expressly manifest the Governor's intention either to nominate the appointee to the remainder of the statutory term or, much more rarely, to nominate the appointee to the recess appointment only. See, e.g., 1986 S. Jour. at 19-31; 1985 S. Jour. at 39-51; 1951 S. Jour. at 1657-77. Moreover, although the records regarding recess appointments are not arranged so as to permit a thorough canvass, we have identified at least one recorded instance in which a person other than the recess appointee was nominated for the balance of the recess appointment only and a different person was later nominated for the statutory term of that office. Compare 1951 S. Jour. at 1664 with 1951 S. Jour. at 1713 (Democratic Substitute Supervisor of Elections, Frederick County).

Indeed, in 44 Opinions of the Attorney General 272 (1959), this office advised that even if a recess appointee of the predecessor Governor were confirmed for the recess appointment, nevertheless the successor Governor had authority to make his own nominations for the remainder of the statutory term:

"It is therefore obvious that, even if the recess appointments are confirmed, there will be vacancies existing in all of the offices to which the recess appointments were made commencing on the first day after the Senate adjourns. You should, therefore, submit the nominations of the persons whom you desire to hold those positions for the unexpired term of office to the Senate for confirmation while it is in session." 44 Opinions of the Attorney General at 273.

In short, the Governor has broad discretion with respect to recess appointments. The Governor may simply nominate the recess appointee to serve out the balance of the recess appointment—that is, until the end of the session or the qualification of a successor, whichever occurs sooner; the Governor may nominate the recess appointee to the remainder of the statutory term; or the Governor may nominate "some other person" for either.5

IV
Governor's Discretion After Nomination

We next turn to your specific question: When the Governor has chosen to nominate the recess appointee for the remainder of the statutory term, may the Governor—most likely, a new Governor—later withdraw that nomination and substitute a new nominee?6

In general, nothing prevents the Governor from withdrawing a nomination that has not been acted upon by the Senate. A leading decision summarizes the point this way: "[I]n cases where the nomination must be confirmed before the officer can take the office or exercise any of its functions, the power of removal is not involved and nominations may be changed at the will of the executive until title to the office is vested." McChesney v. Sampson, 23 S.W.2d 584, 587 (Ky. 1930). See also, e.g., McBride v. Osborn, 127 P.2d 134, 137 (Ariz. 1942); State ex rel. Todd v. Essling, 128 N.W.2d 307, 312 (Minn. 1964). See generally 65A Am. Jur. 2d Public Officers and Employees §113, at 753 (1984). Prior to Senate action, a nomination is a "completely voluntary" act of the Executive. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155 (1803).

Well-reasoned precedent supports the application of this general principle to the nomination of a recess appointee. In Florida, statutory procedures for the filling of vacancies parallel the constitutional procedures in Maryland.7 An incoming governor asked the Florida Supreme Court whether he had the power to withdraw the nomination of a recess appointee made by his predecessor and substitute a new nominee for the unexpired portion of the term. The Florida Supreme Court held that he did:

"Although, under the statute, an officer duly appointed for the ad interim term cannot be removed during such term except for good cause, the name of any other qualified person to fill the unexpired term may be submitted to the Senate for confirmation. Until confirmed by the Senate, the Governor may recall any name and substitute another." In re Advisory Opinion to Governor, 247 So. 2d 428, 433 (Fla. 1971).

This discretion, the Florida court held, is essential to the carrying out of the Governor's responsibilities:

"The Chief Executive, selected by the people, is charged with the responsibility of completing the program he presented to the electorate while seeking the office. It is important that he be allowed to exercise a freedom of choice in selecting those appointees whom he feels are qualified, as the people look to him for leadership in the operation of their government." Id.

In our view, the Governor has the same "freedom of choice" under the Maryland Constitution.8

We emphasize that the Governor's decision to withdraw the nomination of a recess appointee does not oust the appointee from office. The appointee would continue to serve the only term to which the appointee has title—the term of the recess appointment itself, limited by Article II, §11 to the earlier of the adjournment of the General Assembly or the qualification of the appointee's successor. The Governor's issuance of a commission and the appointee's taking of the oath complete the appointment for that limited term. See Barrett v. Duff, 217 P. 918 (Kan. 1923); McChesney v. Sampson, 23 S.W.2d at 587. See generally Annotation, Consideration of Appointment, or Confirmation of Appointment, to Office, 89 A.L.R. 132, 135 (1934).

V
Conclusion

In summary, it is our opinion that the Governor may withdraw the nomination of a recess appointee. If the nomination is withdrawn, the recess appointee continues in office until the adjournment of the General Assembly or the qualification of the appointee's successor, whichever occurs first.

J. Joseph Curran, Jr., Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

1 In this particular instance, Governor Schaefer ultimately decided not to withdraw the nomination. Nevertheless, you requested that we address the underlying legal issue.

2 This conclusion confirms the advice previously rendered to you. Letter from Assistant Attorney General Linda H. Lamone to the Honorable Thomas V. Mike Miller, Jr., President of the Senate (February 23, 1987).

3 The only substantive change made in this provision since 1851 is in the clause relating to the time at which the nomination must be submitted to the Senate. Originally, the nomination was to be made "within thirty days after the next meeting of the Legislature." Article II, §11 was amended in 1956 to require submission of a nomination "on the first day of the next regular meeting of the Senate." Chapter 626, Laws of Maryland 1955 (ratified November 6, 1956).

4 Under Article III, §7 of the Constitution of 1851, the General Assembly was ordinarily to meet every other year. Cf. Article 23 of the Constitution of 1776 (providing for annual meetings of General Assembly).

5 If the Governor fails to send any name to the Senate, the recess appointment would end at the adjournment of the Senate and the office would be vacant. Sappington v. Slade, 91 Md. 640, 646 (1900). The same would be true if the Senate rejected the nomination of the recess appointee or of another person nominated instead, or took no action on the nomination. 43 Opinions of the Attorney General 86, 89 (1957); 21 Opinions of the Attorney General at 282.

6 In our view, there is no difference between the authority of an incumbent Governor and that of a newly elected Governor: "The Office of the Governor is a continuing one, irrespective of the person who occupies it, and a succeeding Governor has the same power over an appointment as the predecessor Governor would have had if he continued in office." Burke v. Schmidt, 191 N.W.2d 281, 283 (S.D. 1971).

7 Florida law creates the same dichotomy between the recess term and the remainder of the statutory term: "When a vacancy occurs in an office which must be filled by appointment by the Executive and confirmation by the Senate, two terms arise: The ad interim term runs from the date of the first appointment until the end of the next ensuing session of the Senate unless confirmation is sooner made by the Senate of an appointee for the unexpired portion; the next term is the unexpired term of the office which begins upon appointment by the Governor and confirmation by the Senate." In re Advisory Opinion to Governor, 247 So. 2d 428, 431 (Fla. 1971) (emphasis in original).

8 Other out-of-state authority upholds the power of a governor to withdraw an unconfirmed nomination made by a predecessor. Petition of Commission on Governorship of California, 603 P.2d 1357, 1364-66 (Cal. 1979) (governor has authority to withdraw unconfirmed appointment by acting governor); Burke v. Schmidt, 191 N.W.2d at 284-85 (incoming governor has authority to withdraw appointments of predecessor). Cf. United States v. Woodley, 751 F.2d 1008, 1009 (9th Cir. 1985) (discussing president's withdrawal of nomination of recess appointee).