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05/07/2013

More on Recess Appointments
Michael Ramsey

Three interesting further arguments on recess appointments:

First, Peter L. Strauss (Columbia Law School) has posted The Pre-Session Recess (126 Harv. L. Rev. F. 130 (2013)) on SSRN.  Here is the abstract:

In the brief remarks following, I do not address the Burkean argument that practice has established the permissibility of recess appointments during the week-or-more adjournments of Congress that modern transportation modalities permit. We can perhaps let President Eisenhower’s recess appointments of Chief Justice Warren, Justice Brennan, and Justice Stewart stand witness to that understanding. Rather, I want to suggest flaws in the originalist analysis used by the Canning court and in the Senate’s ruse of meeting every three days over the winter period of 2011-12 that many take to place the January 4, 2012 recess appointments President Obama made to the NLRB and to the Consumer Financial Protection Bureau outside that practice.

This brief contribution to the Harvard Law Review Forum explores historical realities unexamined by the Canning court, as well as Congress's consistent practices under the 20th Amendment to the Constitution and that amendment's text to argue that the Second Session of the 112th Congress was necessarily in recess -- "the" recess if one wishes -- from January 3, 2012 until mid-January, when it first actually assembled. A resolution of the First Session, not being the "law" the 20th Amendment requires validly to postpone the assembly of the Congress cannot affect that proposition, and hence the January 4 Recess Appointment President Obama made comfortably fit established historical traditions of intersession recess appointments regularly made since early in the 19th Century.

(Thanks to Michael Perry for the pointer).

Second, Gerard Magliocca has this post at Balkinization: Defining "the recess" (discussing the "the recess" language in Article I, Section 3).

And third, Amelia Frenkel (NYU Law School J.D. candidate '14) has this Note in the May 2013 NYU Law Review: Defining Recess Appointments Clause "Vacancies" (88 NYU L. Rev. 729 (2013)).  Here is the abstract:

The Recess Appointments Clause gives the President the power to “fill up all Vacancies that may happen during the Recess of the Senate.” Throughout American history, the Clause has been the subject of intense constitutional focus, as well as political jockeying between the legislative and executive branches. The recess appointment of Richard Cordray as the first Director of the Consumer Financial Protection Bureau in January 2012 brought new attention to the issue, raising novel constitutional questions about the propriety of modern uses of the recess appointment power. This Note addresses the question of whether the President is constitutionally empowered to make recess appointments to newly created offices and concludes that he is not.

(Via How Appealing).