While the Senate Sleeps: Do Contemporary Events Warrant a New Interpretation of the Recess Appointments Clause?
28 Pages Posted: 2 Jul 2009 Last revised: 16 Jul 2009
Date Written: June 30, 2009
The Recess Appointments Clause has been the subject of litigation and heated scholarly debate. Nonetheless, the powers granted under the Clause have been invoked frequently by presidents and the resulting commissions have withheld judicial scrutiny. Thus far, all scholarly arguments in favor of limiting the Clause have been text-based and have been dismissed by courts because adopting the reasoning in these arguments would require accepting the proposition that nearly every president has unconstitutionally used the Recess Appointments Clause to appoint officers. This Article similarly argues for limiting the scope of the Recess Appointments Clause, but does so in a manner that does not imply that George Washington and his presidential successors have trampled upon the Constitution. Instead, it uses a “living Constitution” approach and concludes that the contemporary structure of the federal judiciary, coupled with recent events, indicates that the purpose behind the Clause is no longer met by using it to fill vacancies on Article III courts.
Keywords: recess appointments, Recess Appointments Clause, living Constitution, federal courts, judiciary, federal judges, vacancy, appointment, advice and consent, senate, Constitution, Article III, judicial
JEL Classification: K10, K19
Suggested Citation: Suggested Citation