fbpx

New Federalist Society Teleforum on Recess Appointments

Recently, I participated in a Federalist Society Teleforum — a panel presentation conducted through a large conference call (which apparently had nearly 100 audience members) — on President Obama’s recent recess appointments during the Senate’s pro forma session.  I focused on the original meaning of the Recess Appointments Clause; Chuck Cooper, my former boss at the Office of Legal Counsel, argued that the Obama Administration’s ignoring of the Senate’s pro forma sessions was impermissible; and Peter Shane and William Yeomans took the opposite side.  As with all Federalist Society events, there were diverse viewpoints and a healthy debate.

Michael Stern, who has been blogging on the history of recess appointments, see e.g. here, asked a very perceptive question to the defenders of President Obama’s recess appointment.  One problem with the Administration’s position is that they argue that the pro forma sessions may be valid for purposes of some clauses of the Constitution, such as the Three Day Adjournment Clause of Art. I, sec. 5, but not for the Recess Appointment Clause. This is a very troubling view.  Stern, however, takes the argument one step further.  He notes that President Obama could have made his recess appointment at the end of December rather than at the beginning of January.  But that would meant that the recess appointment would have lasted only until Dec. 2012.  That he made the appointment 1 week later meant that the appointment, if valid, will last until Dec. 2013.  So the Administration chose to make the appointment in January.   But in doing so, it was relying on the fact that pro forma session was a valid session!  The only reason the new session had begun was that a pro forma session had been held on January 3.   So, even for purposes of the Recess Appointments Clause, the Administration had accepted the pro forma session for some purposes, but not for others.

So hats off to Michael Stern for seeing this.  And a Brooklyn Cheer for the inconsistency and, yes, lawlessness of the Administration.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on May 01, 2012 at 07:53:45 am

What’s interesting to me, is how the ante has been upped. The Republicans found a way to get arnuod recess appointments by theoretically never going into recess –I believe that the Democrats did this during the Bush administration, and the Bush Administration was of the opinion that it did not hamper his ability to make recess appointments. (Not that I consider a Bush Administration opinion worth the paper it's printed on, unless it's printed on toilet paper unspoiled by the printing, in which case it would be worth precisely that much, if one's TP supply is low.)It is an interesting case, and my biggest concern is the whining. If the Republicans think this is a big deal, they should bring it to court. Either put up or shut up. Trying to make it a big, big deal, but not so big that it's worth challenging in court, is trying to play both sides. It is a question that requires settling. I think Obama is right to force the issue for that reason alone.

read full comment
Image of Miajean
Miajean

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.