The Senate and the Recess Appointments

Abstract

This Essay offers a new perspective on recess appointments controversies. It argues, contrary to the dominant views, that the courts should defer to the Senate's wishes regarding its recesses rather than define the term "recess" themselves, at least when the Senate and the President both favored the disputed appointments. It also argues that the relevant body for determining Senate intent is the Senate majority rather than the whole Senate. This perspective recommends an important change in the judicial approach to the recess appointments at issue in Noel Canning v. NLRB: The courts should uphold the appointments unless the challengers demonstrate that the Senate majority wished to block them. In addition, in a case like Noel Canning, the courts should consider seeking the views of the Senate majority, which has been wholly absent from the litigation.

Keywords: recess appointments, recess appointments clause, separation of powers, presidential appointments, constitutional law, administrative law

JEL Classification: K10, K30, K40