Wednesday, May 01, 2013
Defining "the recess"
Gerard N. Magliocca
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.
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?
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.Post a Comment
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