Abstract

http://ssrn.com/abstract=775169
 
 

Citations (1)



 
 

Footnotes (228)



 


 



The Original Meaning of the Recess Appointments Clause


Michael B. Rappaport


University of San Diego School of Law

2005

UCLA Law Review, Vol. 52, p. 1487, 2005
San Diego Legal Studies Paper No. 07-09

Abstract:     
This Article explores the original meaning of the Recess appointments Clause. Under the current interpretation, the Clause gives the President extremely broad authority to make recess appointments. The Article argues, however, that the original meaning of the Clause actually confers quite limited power on the President and would not permit most of the recess appointments that are currently made.

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." The Article makes two basic claims about the original meaning of the Clause. First, it argues 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. 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 a session - the President cannot fill that office with a recess appointment. The prevailing interpretation of the Clause, however, permits the President to make a recess appointment 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 generally make a recess appointment for any office so long as he waits until there is a recess to do so.

The Article's second claim involves the original meaning of the term "recess." The Article maintains that the Constitution permits recess appointments only during an intersession recess - the recess between two sessions of a Congress - and does not allow such appointments during an intrasession recess - the typically shorter recess taken during a session. Under this view, the President generally would be able to make recess appointments only once each year during the intersession recess. The prevailing interpretation, however, allows the President to make recess appointments many times a year, including during intrasession recesses of ten days and perhaps of even shorter duration. Obviously, the prevailing interpretation provides the President with greater recess appointment authority than does the original meaning.

Number of Pages in PDF File: 92

Accepted Paper Series


Download This Paper

Date posted: August 8, 2005 ; Last revised: January 12, 2012

Suggested Citation

Rappaport, Michael B., The Original Meaning of the Recess Appointments Clause (2005). UCLA Law Review, Vol. 52, p. 1487, 2005; San Diego Legal Studies Paper No. 07-09. Available at SSRN: http://ssrn.com/abstract=775169

Contact Information

Michael B. Rappaport (Contact Author)
University of San Diego School of Law ( email )
5998 Alcala Park
San Diego, CA 92110-2492
United States
Feedback to SSRN


Paper statistics
Abstract Views: 3,187
Downloads: 347
Download Rank: 10,720
Citations:  1
Footnotes:  228

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.640 seconds