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01/30/2013

Greve on the Recess Appointments Decision
Mike Rappaport

Michael Greve is not enthusiastic about the D.C. Circuit's recess appointments decision.  Let me just make two quick responses here.  Michael says

I’m not a great fan of hanging too much on definite or indefinite article (“the,” “a”), for statutory or even constitutional purposes. The court’s opinion looks a tad doctrinaire, and it upsets recess appointment arrangements that have been common for many, many decades (although not, Judge Sentelle trenchantly notes, the first several decades of constitutional practice).

First, while the court relied on "the recess of the Senate," my article did not place much, if any, reliance on that aspect of the language.  The recess of the Senate in my view is somewhat ambiguous -- it could simply refer to the state of the Senate being in recess.   But there are many additional strong reasons to reject the view that allows intrasession recess appointments.  That said, I don't really see why one would ignore the definite article in interpretation generally.  The framers of provisions used language and we can't just ignore the rules and practices of that language.

Second, it is true that the decision upsets arrangements that have been common for many decades, but so what?  Are there any significant reliance interests at stake in this area?  No.  Lets repeat that -- NO.  So why follow modern interpretations that are inconsistent with the senatorial check that the Constitution places on the President?

(Cross posted at the Liberty Law Blog)