98 Pages Posted: 19 Mar 2014 Last revised: 25 Mar 2015
Date Written: July 9, 2014
This Article reevaluates the original meaning of “recess” in the Recess Appointments Clause. The dominant view of that word holds that it refers only to breaks between official Senate sessions. By identifying new evidence and correcting mistaken interpretations, this Article finds support only for the conclusion that the original public meaning of “recess” was ordinary and broad, referring to any time when a legislative body is not conducting business. The evidence does not support any particular limitation on recesses, although it does not rule out the possibility that one existed. For those seeking to limit “recess,” the Article poses four reasonable nonoriginalist limiting constructions. It also considers whether the divergence in views on “recess” can be attributed to methodological differences among originalists and finds that explanation improbable. Finally, the Article makes two general points that arise from its analysis: it may be more difficult than is widely appreciated to establish a specialized original meaning, and scholars making originalist claims should provide clear accounts of the scope and limitations of their research.
Keywords: recess appointments clause, recess appointments, presidential appointments, originalism, new originalism, original meaning, original public meaning, constitutional law, administrative law, noel canning
Suggested Citation: Suggested Citation
Arkush, David J., The Original Meaning of Recess (July 9, 2014). University of Pennsylvania Journal of Constitutional Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2410851 or http://dx.doi.org/10.2139/ssrn.2410851