Moving the Overton Window and Student Notes

When you launch a new idea, its very newness puts it outside of the mainstream. Back in 2007, in an academic article, recess appointments were one of the issues du jour. I wrote that if a President made a recess appointment, a determined Senate could kill the appointment by ending its current session and immediately starting a new one (or by doing so twice, in the case of an intra-session recess appointment). See Seth Barrett Tillman, Senate Termination of Presidential Recess Appointments, 101 Nw. U. L. Rev. Colloquy 82 (2007), https://ssrn.com/abstract=956164 (the first part of a four-part Tillman-Kalt exchange).

I admit that the idea was a bit novel—but it does follow from the text of the Constitution’s Recess Appointments Clause. One student note called my “innovation[] … at once both plausible and absurd ….” David Frisof, Note, Plausible Absurdities and Practical Formalities: The Recess Appointments Clause in Theory and Practice, 112 Mich. L. Rev. 627, 643 (2014).

Two years later, in 2016, what was absurd is now standard fare.

All that the [Republican majority] Senate would need to do [to terminate a purported recess appointment by President Obama of Judge Garland to the Supreme Court] is end its next session by adjourning sine die and Garland’s term would end. This is because, under the Constitution’s Recess Appointments Clause, such appointments terminate at the end of the next Senate session. Adjourning sine die would require the cooperation of the House and a president’s signature, but that would be no obstacle come Jan. 20. In other words, Congress could terminate any recess appointment made by Obama in less than three weeks.

Jonathan H. Adler, The real reason President Obama won’t recess-appoint Merrick Garland to the Supreme Court, The Washington Post—The Volokh Conspiracy (Dec. 29, 2016, 7:15 PM), http://tinyurl.com/jljwrrm.

Back in 2008, I argued that slight differences in the Constitution’s “office” terminology may have been meaningful back in 1788. I tentatively suggested in a footnote that: “Perhaps the President is not an officer at all, rather, the President is an official, a magistrate, an officeholder, or the holder of an Article VI public trust?” Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol’y Sidebar 1, 2 n.4 (2008).

One student note responded:

Th[e] [Constitution’s text] would also imply that the President himself is an “officer of the United States.” See Black’s Law Dictionary 1117 (8th ed. 2004) (defining an “officer” as “[a] person who holds an office of trust, authority, or command”). But see Tillman, supra note 10, at 10–12 (arguing that the president is not an “officer” and distinguishing between an “officer” and an “officeholder”).

For an example of drawing out numerous minor textual differences without any meaningful distinctions, see Tillman, supra note 10, at 10–12. Tillman relies on such differences to attempt to show that the President is an officeholder, but not an officer. Id.

David J. Shaw, Note, An Officer and a Congressman: The Unconstitutionality of Congressmen in the Armed Forces Reserve, 97 Geo. L.J. 1739, 1743 nn.19–20 (2009) (bold added). More recently, I came across an unpublished Scalia-authored OLC memorandum. Scalia wrote: “[W]hen the word ‘officer’ is used in the Constitution, it invariably refers to someone other than the President or Vice President.” Memorandum to Honorable Kenneth A. Lazarus, Asso. Counsel to the President, from Antonin Scalia, Asst Att’y Gen., Office of Legal Counsel, Re: Applicability of 3 C.F.R. Part 100 to the President and Vice President, at 2 (Dec. 19, 1974) (bold added), https://ssrn.com/abstract=2889011.

So you can shift the Overton window in the legal world, but it takes about 8 years and a good bit of luck (such as a “fortunate constellation of facts” [per Rumpole] which focuses a lot of attention on your issue or the discovery of missing authority).

Seth

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

My prior post: Seth Barrett Tillman, Ed Kilgore’s Recess Appointments Strategy Won’t Work & This Is Why, The New Reform Club (Dec. 29, 2016, 2:48 AM). [here]