The Right Coast

October 07, 2004
The Original Meaning of the Recess Appointments Clause
By Mike Rappaport

Although President Bush has made a deal with the Senate Democrats not to recess appoint any additional judges this year, the issue is still quite important. The constitutionality of his recess appointments is now being considered by the federal courts. Moreover, after the election, the issue is likely to arise again, whether Bush or Kerry wins. If Bush wins, he will either face a Democrat Senate minority who is willing to filibuster his nominees or, should the Democrats retake the Senate, a Senate majority who will not confirm his nominees. If Kerry wins, a similar situation will result: a Republican majority who will refuse to confirm his nominees or a Republic minority who will filibuster them.

I have just finished a draft of a paper that examines the Recess Appointments Clause from an originalist perspective. My conclusions will be quite surprising for many of those who support the President’s recess appointments. I argue that the original meaning of the Recess Appointments Clause is quite narrow, and would not permit many of the recess appointments made by President Bush and by other Presidents during this century. I reach this conclusion, even though I believe that the Recess Appointments Clause does not forbid the President from recess appointing Article III judges.

I have just recently submitted the paper to law journals, but unfortunately it is a little late in the season. So if there are any law journal editors out there who are still looking for articles, please feel free to take this one.

The paper is available on SSRN. Here is an abstract:

This article addresses the proper interpretation of the Recess Appointments Clause. Under the existing interpretation of the Clause, the President has extremely broad authority to make recess appointments. Indeed, the authority is so vast that in my view the principal constraint on the President’s recess appointment power is not a legal limitation, but the negative political backlash that extensive use of the power might provoke. I argue, however, that the original meaning of the Recess Appointment Clause actually confers quite limited power on the President and would not permit most of the recess appointments that are currently made. For example, under my view, President Bush’s recess appointments of Charles Pickering and William Pryor would not have been constitutional and a President would have difficulty recess appointing a Supreme Court justice who experiences opposition in the Senate.

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.
I should note that I do not reach these conclusions happily. I generally support President Bush’s judicial nominations and I also believe that the Constitution confers strong powers on Presidents. In fact, when I first began to look at the recess appointments issue, I was planning on taking the opposite side. But the evidence quickly convinced me that my prejudices were mistaken and I am now firmly persuaded that the original meaning is dramatically different than the current interpretation.