The Volokh Conspiracy

And if our "esteemed" President really thought the Constitution mattered, the issue wouldn't have come up.

You're right Owen. Bush is the first President ever to use the recess appointment for political reasons. No one

Or, your copy of the Constitution might be missing Article II, Section 2:

"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."

Funny how often Bush using his power automatically means "abusing" his power." If you don't like recess appointments, then get the Constitution amended to eliminate them.

By the way, Justices Holmes and Brennan were originally recess appointments.

IHAQ, don't read the Constitution too closely -- you'll annoy the "originalists."

Anderson, the snark is unwarranted - the Rappaport article I referred to above (its The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487 (2005), for those who doesn't want to click through), for example, asks precisely that question yet is very much an originalist analysis. The only people who might get annoyed about such a question are the defenders of the present administration. Both of them.

To wit, the textual authorization for the President "to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of the[] [Senate's] next session" can't reasonably be read as permitting the President to fill up all vacancies extant when the Senate goes into recess.

I think that is an unjustified interpretation. Why would the framers give the president the power to fill a vacancy during a recess? Presumably because they felt that leaving the position empty until such time as the Senate was again in session and could confirm a repacement would be detrimental to the good functioning of the government. Wouldn't that same reasoning apply to vacancies for whose nominees the Senate had refused to hold confirmation hearings? If the Senate is going to put campaigning in their home state above their constitutional duty, then why shouldn't this power be invoked to keep the government running?

As for "The only people who might get annoyed about such a question are the defenders of the present administration," I would remind you that Clinton also used recess appointments to fill vacancies that occurred before the Senate went into recess.

Here's a more interesting question. If the House is in recess but the Senate isn't because it is having pro forma sessions, then does this qualify as a disagreement about "the time of adjournment"? Because if it does, the president has the power under Article 2, clause 3, section 3 to adjourn both houses until "such Time as he shall think proper", which might involve hell freezing over. Actually, the latest he he could adjourn them to would be December 2008 but I can dream, can't I?

What does it matter what the appropriate interpretation of the recess appointment clause is, when there's no valid reason for that clause to have stuck around after the Wright Brothers, Henry Ford, and Alexander Bell ended the travel-time and communications-lag problems that were the only justification for it to begin with?

If people really want to play hardball, what prevents the Senate from calling every week a new "session"?

Andrew: "Senator Webb is a big guy, but he's not a quorum."

(Shh. Don't let him hear you-- I think he packs heat.)

Steve2, it's always been physically possible for a majority of the Senate to remain in the capitol building all year long, without interruption. It never has happened, and never will happen, but it's always been possible.

Likewise, it's always possible for the Senate to change its rules so that a quorum can be formed in a conference call, instead of on the Senate floor, but that hasn't happened either.

If the President gives a reasonable notice of an impending recess appointment, and a quorum does not show up on the Senate floor, then it seems to me the recess appointment is legitimate.

You may be right, Nick. However, the same argument could be made in the event that Harry Reid were to start issuing orders to the Pentagon. "Let the voters decide."

Here's how the Senate Judiciary Committee itself explained what a "recess" is in 1905:

the period of time when the senate is not sitting in regular or extraordinary session as a branch of the Congress, or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments....Its sole purpose was to render it certain at all times there should be, whether the Senate was in session or not, an officer for every office, entitled to discharge the duties thereof.

Of course, the Senate Judiciary Committee could have been wrong in 1905, but I suspect not.

Steve2, do you think the following provision of the Constitution is illegitimate as well?

[I]f Vacancies [in the Senate] happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

Do you think that governors can no longer appoint U.S. senators? Or that a state legislature can prevent such appointment by conducting "pro-forma" sessions?