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12/07/2013

Jonathan Turley on Recess Appointments and Constitutional Adverse Possession
Michael Ramsey

In the current issue of the Wisconsin Law Review, Jonathan Turley (George Washington Law School) has this article:  Constitutional Adverse Possession: Recess Appointments and the Role of Historical Practice in Constitutional Interpretation (2013 Wisc. L. Rev. 965).  From the introduction:

The broad interpretation of the [Recess Appointments] Clause is justified [by the executive and others] by the fact that presidents have used transparently short recesses, both intrasession and intersession, to make appointments.  In light of this practice and the failure of Congress to deter such appointments, the meaning of the Clause is presumed to be much broader. The use of historical practice in the interpretation of the Clause ignores the purpose of the Clause specifically and the separation of powers generally in avoiding the concentration of power. It creates a type of constitutional adverse possession where the simple success of a president in usurping congressional territory is treated as proof of the validity of the underlying interpretation. Like the property doctrine, courts allow the acquisition of title to constitutional territory after “the claimant [demonstrates] exclusive possession that is open, notorious, continuous, and adverse” for a sufficiently long period.  Of course, in this form of adverse possession, the original holder of the territory, Congress, has long contested the possession of the power in many of these cases. However, the fact that presidents have continued the use of the power has been taken as proof that the Clause has a broad meaning in favor of the Executive Branch.  This has allowed presidents to adversely possess an area left to Congress to maintain balance within the system. While this fundamental disagreement now appears headed to the courts, it is clear that this disagreement is likely to continue and even grow more acute in the coming years. While this Article clearly favors a more restrictive interpretive approach, the Cordray controversy should serve to highlight the insufficiency of historical practice rationales and the need to tether interpretations closer to both the text and purpose of constitutional provisions like the Recess Appointments Clause.

(Thanks to Seth Barrett Tillman for the pointer).

SOMEWHAT RELATED:  From Real Clear Politics Video, Jonathan Turley: Obama's Become the Very Danger the Constitution Was Designed to Avoid.