The Original Meaning of the Recess Appointment Clause

While I have blogged about this matter elsewhere on the Originalism Blog, I thought I would present my views on the issue on the Liberty Law Blog.

In 2005, I wrote a long article investigating the original meaning of the Recess Appointments Clause.  It turns out that the power of the President to make recess appointments is much narrower under the original meaning than it is under current practice.

The original meaning of the Recess Appointments Clause allows 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

(An intersession recess is a recess between two Senate sessions.  An intrasession recess is a recess during a Senate session.  In my view, the Constitution’s use of the term recess is restricted to intersession recesses.  When the Constitution wants to refer more broadly to both intersession and intrasession recesses, it speaks of adjournments.)

This interpretation makes perfect sense of the evident purpose of the Clause.  The President ordinarily appoints officers with the advice and consent of the Senate.  During a recess, the Senate is not around and so the President needs to be able to make temporary or recess appointments to get the executive work done.  The goal, however, is also to prevent the President’s ability to make temporary appointments from swallowing the rule requiring Senatorial advice and consent for appointments.

The original meaning serves these purposes well.  It allows the President make a temporary appointment when vacancy arises during a recess and the appointment is made during that same recess.  If the Senate is not around – and in the old days, the Senate might be out of session for 6 – 9 months – then the President can fill the office.  Moreover, restricting recess appointments to intersession recesses also makes sense, because it was only the intersession recesses that were long; intrasession recesses were quite short.

By contrast, under modern interpretations of the Clause, the President can make a recess appointment during a recess, irrespective of when the vacancy arose.  That means that the President can nominate someone and send his name to the Senate for confirmation.  Then, if the Senate chooses not to act on the nomination during the session, the President can simply wait for a recess, and then recess appoint the person.  This is clearly problematic.  This does not allow the President to make recess appointments when the Senate’s recess prevents it from acting on a nomination.  Instead, it allows the President to circumvent the senatorial advice and consent function.

Moreover, the modern interpretation of the Clause also treats intrasession recesses, which are both more common and typically shorter than intersession recesses, as allowing recess appointments.  This gives the President more opportunities to circumvent the Senate.

In future posts, I hope to address the validity of President Obama’s recent recess appointments under modern practice and the possibility that the Supreme Court might return to the original meaning.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. John Kettlewell says

    I agree with your view on Recess Appointments. I would add that the “commisions that shall expire at the end of their next session” portion, subtley announces that there is an expectation of nomination when session resumes, as it ends concurrently with the ending of the next session, which by definition would not “happen during recess”. Otherwise you are on point, it would be recess appointment in perpetuity, regardless of any Pay Act which would restrict wages.

    Government has become so enormous, many appointments to be made, sometimes they just want to ‘git er done’; therefore, the rules become malleable, and molded to one’s own end. The new normal sets in and is now precedent, only to be further pushed by the following rule-benders. The Republicans in Congress are complicit, as they have not once stood up to this Administration. They go along if they agree with it, such as Libya, not if it’s proper. Now they’re trying to win in 2012, so this faux outrage they show on RA’s is embarassing, and they want the RA power that this Admin has shown possible.

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