Preserving the Appointments Safety Valve
Alexander I. Platt
Boies, Schiller, and Flexner LLP
January 2, 2012
30 Yale Law & Policy Review 255 (2012)
In 2007, Senate Democrats blocked President Bush from making recess appointments by conducting thirty-second pro forma sessions over the Senate’s Thanksgiving holiday. Senators deployed the maneuver throughout the remainder of the Bush administration, and again against President Obama. Though these sessions have transformed the appointments landscape, and have already generated severe burdens on effective governance, they have been virtually ignored by constitutional scholars. This Note provides the first sustained analysis of these sessions.
The Note begins by revealing a methodological asymmetry in the jurisprudence on presidential personnel decisions. While the Supreme Court has employed a dynamic and creative interpretive method in removal power cases, lower courts adjudicating the boundaries of the Recess Appointments Clause have hewn to a static and deferential method. The Note argues for resolving this asymmetry in favor of the removal case method, and then applies this method to the pro forma sessions. In the contemporary separation of powers, recess appointments function as a constitutional safety valve, preserving the President’s ability to take care that the laws are faithfully executed. By depriving him of this safety valve, pro forma sessions violate the principle of effective governance embedded in the Recess Appointments Clause, and should be rejected.
Number of Pages in PDF File: 47
Keywords: Recess Appointments, Constitutional Law, Pro Forma Sessions
Date posted: January 2, 2012 ; Last revised: April 5, 2012
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