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Senate Termination of Presidential Recess Appointments

Northwestern University Law Review Colloquy, Vol. 101, p. 82, 2007

Northwestern University Law Review Colloquy, Vol. 103, p. 286, 2009 (republished)

6 Pages Posted: 9 Jan 2007 Last revised: 26 Dec 2012

Seth Barrett Tillman

National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law

Date Written: September 13, 2010

Abstract

I argue that as a simple straight forward textual matter the Senate majority can terminate a presidential recess appointment by terminating their session, i.e., the session that meets following a presidential intersession recess appointment. If the president makes an intrasession recess appointment (assuming such things have any constitutional validity at all), the Senate can terminate that appointment too - by terminating the current session, immediately reassembling, and then terminating the new session!

I do not argue that American history or the Constitution's structure support this position, nor do I feel inclined to do so, where as here, the text is reasonably clear. I do, however, marshal some policy arguments to support the textual argument, although I frankly acknowledge that these arguments should not control the meaning of a constitutional clause.

My opening article appears at: Tillman, Senate Termination of Presidential Recess Appointments, 101 Nw. U. L. Rev. Colloquy 82, also appearing at, http://ssrn.com/abstract=956164. Professor Brian C. Kalt has drafted an interesting and thoughtful response to my proposed procedural innovation. His response appears at: Kalt, Keeping Recess Appointments in Their Place, 101 Nw. U. L. Rev. Colloquy 88, also appearing at, http://ssrn.com/abstract=959051. My Reply to his response appears at: Tillman, Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt, 101 Nw. U. L. Rev. Colloquy 94, also appearing at, http://ssrn.com/abstract=962100. And finally, Professor Brian C. Kalt has posted: Keeping Tillman Adjournments in Their Place: A Rejoinder to Seth Barrett Tillman, 101 Nw. U. L. Rev. Colloquy 108, also available at, http://ssrn.com/abstract=962762.

This 4-part exchange was originally published over January-February 2007. The exchange was republished on Colloquy on January 2009.

See 103 NW. U. L. REV. COLLOQUY 286 (2009);
103 NW. U. L. REV. COLLOQUY 292 (2009);
103 NW. U. L. REV. COLLOQUY 298 (2009);
103 NW. U. L. REV. COLLOQUY 305 (2009).

The 4-part exchange was also republished on PUBLICSQUARE.NET: COMMON GROUND, UNCOMMON DEBATE.

Colloquy relinked to the four-part exchange on January 16, 2012.

Keywords: President, Congress, House, Senate, recess, adjourn, adjournment, appoint, appointment

Suggested Citation

Tillman, Seth Barrett, Senate Termination of Presidential Recess Appointments (September 13, 2010). Northwestern University Law Review Colloquy, Vol. 103, p. 286, 2009 (republished) . Available at SSRN: https://ssrn.com/abstract=956164

Seth Barrett Tillman (Contact Author)

National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law ( email )

Ollscoil na hÉireann, Má Nuad
New House (#306)
Maynooth, County Kildare
Ireland
(353) (0) 1474-7216 (Phone)

HOME PAGE: http://law.nuim.ie/staff/mr-seth-barrett-tillman

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