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Thursday, April 05, 2007

Recess the Recesses

Marty Lederman has a post up at Balkin about President Bush's recess appointment yesterday of Sam Fox as Ambassador to Belgium. The Senate Foreign Relations Committee was poised to reject Fox, apparently due to his role as a substantial donor to the ironically named Swift Boat Veterans for Truth.

Due to the likelihood that Fox's nomination would be defeated, the President withdrew it last week (if I remember correctly). This withdrawal prevents the nomination from suffering defeat under the advice and consent clause, which appears to preserve the President's ability to appoint Fox pursuant to the recess appointment clause.

Lederman's post discusses the constitutional problems with the recess appointment power as it has come to be used by contemporary presidents of both parties; he also links to other posts of his on the same issue, concerning John Bolton's recess appointment. Unlike Lederman, I don't have any professional experience concerning the actual application of the recess appointment clause, so I'll recommend others read his discussions on the matter.

But I do have two observations to make here.

First, how would an originalist (in the public meaning sense) evaluate the recent practice (e.g., by both Bush and Clinton, and perhaps others)? Is there any possible basis under an originalist interpretation for the claim that an 11-day adjournment qualifies as a "recess"? Or that the vacancy at issue "happen[ed]" during a "recess"? Can one seriously support this use of the recess appointment power and still honestly claim to be an originalist in any meaningful way? Perhaps the answer is yes---and if so, I'd be delighted to read how. [Update: to be clear, Lederman discusses the problematic issue of the ways in which these words' meaning has changed. He also links to briefs he wrote in cases concerning the appointment of William Pryor to the Federal bench.]

Second, here's a prescription for Senators--of either party--who are fed up with this situation: Why not just keep the Senate formally "in session" more or less permanently? If a short adjournment qualifies as a "recess", just stop adjourning. The Senate could keep a skeleton crew in DC on a rotating basis (except, maybe, during the height of campaigns) to satisfy the conditions of a session, obviating the recess appointment power entirely. Moreover, why couldn't the Senate simply redefine its "sesssions" to allow for no Senators to be present but the Senate still to be in "session"? If presidents can be so facile with language, one would expect the Senate could, too. (Of course, presidents might simply claim that the skeleton session is really a recess, setting up a nontrivial constitutional confrontation, but that's another story.)

Update: Commenter Simon generously provides a link to Michael Rappaport's paper The Original Meaning of the Recess Appointments Clause; my hearty thanks to Simon. Here's an excerpt from the abstract (emphases are mine):

The language of the Recess Appointments Clause provides that The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. My article makes two basic claims about the original meaning of the Clause. First, I argue that the Clause permits recess appointments only when an office becomes vacant during a recess and when the recess appointment is made during that recess. Thus, if an office was vacant while Congress was in session - either because the vacancy arose during a session or a vacancy that arose during a recess continued into the session - the President could not fill that office with a recess appointment. The prevailing interpretation of the Clause, however, permits the President to make recess appointments so long as the recess appointment is made during a recess, whether or not the vacancy existed when Congress was in session. Thus, the President can always make a recess appointment for any office so long as he waits until there is a recess to do so.

The second claim in the article involves the original meaning of the term recess. I argue that the Constitution permits recess appointments only during an intersession recess - the (typically long) recess between the two one-year sessions of a Congress - and does not permit recess appointments during intrasession recesses - the (typically shorter) recesses taken during a session. Under my view, the President would be able to make recess appointments only during the one intersession recess each year. The existing interpretation, however, allows the President to make recess appointments on average seven times a year, including for intrasession recesses as short as 10 days (and perhaps even shorter). Obviously, the existing interpretation provides the President with greater recess appointment authority than does the original meaning.

Posted by Jonah Gelbach on April 5, 2007 at 09:13 AM in Constitutional thoughts | Permalink


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Mike Rappaport has an excellent paper talking about the original meaning of the recess appointments clause here.

Posted by: Simon | Apr 5, 2007 3:37:19 PM

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