Senate Vacancies Clause

Original text (Art. I §3 cl. 2)

". . . and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies." — U.S. Const. art. I, § 3, cl. 2

Because state legislatures originally selected Senators, the clause gave the governor power to fill vacancies temporarily when the legislature was in recess.

The clause expressly references "Resignation" — unlike the House Vacancies Clause, which does not. This may reflect the expectation that Senators who refused to follow their state legislature's instructions were expected to resign.

Story: why a temporary gubernatorial appointment, and not the alternatives

Story records three options the Convention could have chosen for a recess vacancy — leave the seat empty until the legislature reconvened, let each state legislature set its own rule in advance, or vest a temporary appointment in some state official — and explains why the third prevailed:

"Confidence might justly be reposed in the state executive, as representing at once the interests and wishes of the state, and enjoying all the proper measures of knowledge and responsibility, to ensure a judicious appointment." — Joseph Story, Commentaries on the Constitution § 725 (1833)

Story records no strong Convention objection to the mechanism, though he notes "it was not adopted without some opposition" (§ 725).

17th Amendment replacement (1913)

"When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct." — U.S. Const. amend. XVII

The 17th Amendment harmonized Senate selection with the House (popular election) and rewrote the vacancy mechanism:

• Writ of election: mirrors the House Vacancies Clause language exactly.
• Temporary appointment: optional — state legislature must affirmatively authorize the governor to appoint. The appointee serves until the special election, not indefinitely.
• No recess limitation: unlike the original, the governor's temporary-appointment power is not limited to legislative recesses.

Contrast with the House

The House Vacancies Clause (Art. I §2 cl. 4) provides only for writs of election — no temporary-appointment mechanism at all. A House seat sits vacant until the special election. This is the single sharpest structural contrast between the chambers on vacancy-filling.