Originalism and Recess Appointments
The recess appointments of Richard Cordray and a few others has taken this area of law one further step into the cesspool. Presidents of both parties have claimed the authority to make recess appointments during intrasession recesses of very brief periods. This is, as I discuss in a moment, contrary to the original meaning. To combat this obvious excess, Senates controlled by both parties have recently employed the technique of a pro form session in an effort to transform their longer recesses into 3 day recesses. As John Elwood writes, "under this procedure, the Senate 'gavels in' briefly every three days, calls the house to order, and ordinarily gavels right back out without conducting any business." The Administration has now responded to these pro forma sessions by claiming that they are gimmicks and not to be respected. Therefore, the President treats the recesses as longer ones, entitling him to make a recess appointment.
President Obama's action here represents an aggressive use of executive power -- or to put the point differently, he takes what is in my opinion an unconstitutional power and asserts it in even more questionable circumstances.
The saga of recess appointments is a sad one from an originalist perspective. In this article, I argue that virtually all of the recess appointments by current presidents are unconstitutional. The original meaning of the Recess Appointments Clause does allow Presidents to make recess appointments, but only when
(1) the vacancy arose during a recess
(2) the appointment is made during that same recess, and
(3) that recess is an intersession recess rather than an intrasession recess (that is, a recess between Senate sessions rather than a recess within a Senate session -- as is the current recess).
What is particularly sad from my perspective is that I believe the original meaning arguments are quite powerful here. Their likelihood of being correct is, in my opinion, very high. There is also no Supreme Court precedent to the contrary. It is true that there is long practice departing from the original meaning, but that practice does not override the original meaning for two important reasons -- departing from the original meaning would not cause significant disruption and the existing practice is so problematic and unstable (as the most recent recess appointments illustrate).
It is time to take recess appointments from the mire in which they are stuck and return them to the clean original meaning. It has long been time!
Update: I should note that John Elwood's otherwise interesting post on this matter contains an error that has frequently been repeated by presidential lawyers. He states
The earliest opinion of the Attorney General on the issue (which first took the position, which also has been controversial, that the President can make appointments not only to fill vacancies that arise during the recess, but also which happen to continue to exist during such a recess) focused on the Senate’s ability to provide advice and consent. Executive Authority to Fill Vacancies, 1 Op. Att’y Gen. 631, 633 (1823) (“all vacancies which . . . happen to exist at a time when the Senate cannot be consulted as to filling them, may be temporarily filled by the President”).
This is untrue. The earliest Attorney General opinion on the matter was issued by Edmund Randolph in 1792, where he concluded that the vacancy had to arise during the recess and that it had to be filled during that recess. See here and here. Elwood may have been misled here, because Randolph's opinion was not included in the official Opinions of the Attorney Generals, but an opinion of a United States Attorney General it certainly was.
Update II: Richard Epstein argues for a similar position here.
Update III: For more thoughts on Recess Appointments, see my subsequent post.