an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Noel Canning case addressing the President's recess appointment power should be the star of the next Supreme Court Term, assuming that certiorari is granted. I want to raise the following question about the panel opinion's interpretation of "the recess" to mean only an intersession recess.
One other provision of the Constitution refers to "the recess." It is in Article One, Section Three, and describes what would happen (prior to the Seventeenth Amendment) if a Senator died or resigned.
"[I]f vacancies happen by resignation, or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies."
This other use of "the recess" could point to a textual problem with the panel opinion. It would mean that the Constitution imposed a federal definition of "recess" on state legislatures. If Connecticut said that intrasession breaks were recesses, or did not subdivide its legislative meetings into sessions at all, then that either would not be valid for purposes of a Senate appointment or would make a hash of the constitutional language. Note also that Art. I, Sec. 3 refers to "the next meeting" of the legislature, not "the next session," which can support the intrasession interpretation.
Now you could say two things in response. First, in practice all of the interim appointments of Senators prior to 1913 probably were intersession, for the simple reason that intrasession breaks would probably have been too short to make it worthwhile to name an interim person. Second, "the recess" could mean different things in these provisions, one about states and the other about the Senate. All of this is well worth exploring in more detail. Posted
by Gerard N. Magliocca [link]
I am not sure that "imposing a federal definition" is the problem- the Senate Vacancies Clause is designed to define when and how states fill vacancies. The real problem is that the suggested definition of "recess" would enable the state legislature to return home (recede from the seat of government) without leaving the governor with the power to fill any vacancies that might arise.
You are assuming (along with everybody else) though that the "session" is a period defined by parliamentary enactments. The better view is that the session, as the RAC uses the term, is simply the period when the Senate is assembled at the seat of government, a period that ends when the Senate recesses.
I start from the position that the Constitution was intended to establish a system of legislative supremacy. (Not absolute supremacy, but certainly relative.)
For instance, the legislature can enact laws over the objection of the executive, but reverse is not true. The executive is entirely cut out of the loop on amending the Constitution. Only the legislature can declare war. The legislature can remove an executive, but the executive can not remove a legislator, not even impede their travel.
From this perspective, it is clear that the recess appointment power is strictly an emergency provision, meant to deal with situations where a vacancy comes up suddenly, must be filled immediately, and the legislature can not promptly act because of long travel times.
What it is NOT intended to be, is a mechanism by which the executive can circumvent the legislature. If the legislature wants a position left empty, they have the power to do that, by refusing their assent to any nominee. Only the genuine inability of the legislature to act soon enough empowers the executive to act without legislative consent, and only temporarily in that case.
From this perspective, it makes complete sense that the recess appointment power would be limited to extended inter-session recesses, where the legislature is genuinely unavailable, not simply gone home for the night, or taking the weekend off. In fact, from this perspective, the recess appointment clause is essentially an anachronism, a relic from a time of poor communications and transportation, and not really necessary at all anymore, outside of extreme circumstances such as the legislative chamber being bombed, and thus lacking a quorum of live members.
In short, that the suggested definition of "recess" would allow the state legislature to return home without leaving the governor the power fill any vacancies is more of a feature than a bug. What vacancies arise anymore which genuinely have to be filled before a weekend elapses?