Senate Termination of Presidential Recess Appointments
Northwestern University Law Review Colloquy, Vol. 103, p. 286, 2009 (republished)
6 Pages Posted: 9 Jan 2007 Last revised: 26 Dec 2012
Date Written: September 13, 2010
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: Suggested Citation