A Quick Thought on Presidential Recess Appointments

Nothing lasts forever. Even the longest, the most glittering reign must come to an end someday.

—Prime Minister Francis Urquhart, House of Cards (1990)

The unexpected death of Associate Justice Antonin Scalia leaves a great gulf in the intellectual life of the nation. I know he will be missed by many. He was a giant, and a force for good in our country. That is an epitaph many strive for, but few deserve. I had some personal correspondence with him over the years, including on the “office” and “officers” issue—perhaps more on that later.

He is not buried yet, but already there is talk of a replacement (as if he could be replaced!). There is even some scattered discussion of a unilateral presidential recess appointment, notwithstanding NLRB v. Noel Canning (2013).

I would urge those advocating bypassing the Senate cool reflection:

If the President makes a recess appointment against the will of a determined Senate majority, the Senate majority is not without recourse. Such a recess appointment—assuming it is constitutionally valid—is only good until the end of the Senate’s next session.

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.

U.S. Const. art. II, § 3. But the Senate controls the start, length, and termination of its own sessions.

If the Senate majority is determined (filibuster considerations aside), the Senate majority can terminate the President’s recess appointment. The Senate need only reassemble at its regularly scheduled time (or earlier if permitted under its last adjournment order), and then—by simple majority vote—order:

(1)                   the termination of its current session;

(2)                   its reconvening immediately in a new (or second) session

(i.e., its “next session” under Article II, Section 3);

(3)                   the termination of its new (or second) session; and,

(4)                   it reconvening immediately in a further (or third) session.

In other words, two swings of the presiding officer’s gavel, and the Senate can turn out all the President’s recess appointees.

Prior to Noel Canning, the President could have pushed back against this Senate-centered strategy. Prior to Noel Canning, the President could have made further or new recess appointments during the instantaneous breaks between any two back-to-back Senate sessions. (Theodore Roosevelt did this circa 1905.) But post-Noel Canning, such a presidential response is now forbidden: both intra-session and inter-session breaks must be at least 10 days long to permit a constitutionally valid presidential recess appointment. In regard to the Senate strategy proposed here, the recess between two back-to-back Senate sessions is instantaneous. Thus, the President cannot push back against a determined Senate majority.

So if you are advising the President ... before urging the President to install a U.S. Supreme Court Justice via a unilateral recess appointment ... before urging the President to act against the will of the Senate majority, think carefully, think dispassionately, think coolly. You may end up, not empowering the President, but energizing the long moribund United States Senate. A fitting further epitaph for Antonin Scalia?

These ideas were developed in full in a 2007 four-part exchange between Professor Kalt and myself. See Seth Barrett Tillman, Senate Termination of Presidential Recess Appointments, 101 Nw. U. L. Rev. Colloquy 82 (2007); Brian C. Kalt, Response, Keeping Recess Appointments in Their Place, 101 Nw. U. L. Rev. Colloquy 88 (2007); Seth Barrett Tillman, Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt, 101 Nw. U. L. Rev. Colloquy 94 (2007); Brian C. Kalt, Keeping Tillman Adjournments in Their Place: A Rejoinder to Seth Barrett Tillman, 101 Nw. U. L. Rev. Colloquy 108 (2007). 

The Kalt-Tillman exchange has been cited here and there.[1] It was also republished on Colloquy in 2009. Subsequently, Colloquy was renamed Northwestern University Law Review Online. 

My prior post was: Seth Barrett Tillman, Miscellaneous Americana (Part III): Washington’s Cabinet—their vitae—and who was well paid in the early Republic, The New Reform Club (Feb. 12, 2016, 2:36 AM). 

Twitter: https://twitter.com/SethBTillman ( @SethBTillman )

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[1] Vivian S. Chu, Cong. Research Serv., RL 33009, Recess Appointments: A Legal Overview CRS-11 n.78 (Jan. 6, 2012); T.J. Halstead, Cong. Research Serv., RL 33009, Recess Appointments: A Legal Overview CRS-11 n.74 (updated July 11, 2007); 2 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 9.8(a) n.5 (4th ed. 2007); Jay Wexler, The Odd Clauses: Understanding the Constitution through Ten of Its Most Curious Provisions 52–53, 201 (2011); Blake Denton, While the Senate Sleeps: Do Contemporary Events Warrant a New Interpretation of the Recess Appointments Clause?, 58 Cath. U. L. Rev. 751, 754 n.19 (2009); Mike McNerney, The Limits of Presidential Recess Appointment Power, 1 Leg. & Pol’y Roundtable 68, 83 & n.82 (2009); David S. Rubinstein, Self-Help Structuralism, 95 B.U. L. Rev. 1619, 1619 n.*, 1629 n.43 (2015); David Frisof, Note, Plausible Absurdities and Practical Formalities: The Recess Appointments Clause in Theory and Practice, 112 Mich. L. Rev. 627, 630 n.17, 642 & nn.82–83, 643 & nn.84–85 (2014); James M. Hobbs, Note, The Future of Recess Appointments After the Decision of the D.C. Circuit in Noel Canning v. NLRB, 162 U. Pa. L. Rev. Online 1, 8 n.46 (2013); United States Code Annotated § Article II, Section 2, Clause 3 (West 2008); United States Code Service § Article II, Section 2, Clause 3 (LexisNexis 2009).