Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt
Seth Barrett Tillman
National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law
September 14, 2010
Northwestern University Law Review Colloquy, Vol. 101, p. 94, 2007
Northwestern University Law Review Colloquy, Vol. 103, p. 298, 2009 (republished)
This article replies to Professor Kalt's response to my opening article, "Senate Termination of Presidential Recess Appointments."
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.
Number of Pages in PDF File: 7
Keywords: President, Congress, House, Senate, recess, adjourn, adjournment, appoint, appointment
JEL Classification: K00, K19
Date posted: February 8, 2007 ; Last revised: December 26, 2012