Keeping Recess Appointments in Their Place

By Brian C. Kalt[*]

[Editor's Note:  The following piece is the second in a four-part dialogue between Tillman and Kalt.  Tillman's opening piece can be found here, Tillman's reply to this response can be found here, and Kalt's final rejoinder can be found here.]

The federal appointment process has degenerated in recent decades.  As the Senate has become more comfortable ignoring nominations instead of rejecting them, Presidents have become more comfortable pushing their recess-appointment powers to their fullest extent—and perhaps beyond.[1]  In his piece on the Recess Appointments Clause, Seth Barrett Tillman offers a clever way for the Senate to respond, which I will call the "Tillman adjournment."[2]  This response suggests some reasons why the Senate is unlikely to try a Tillman adjournment.  In brief, the tactic suffers from both constitutional problems and even deeper practical problems.

Senate Termination of Presidential Recess Appointments

By Seth Barrett Tillman[*]

[Editor's Note:  The following piece is the first in a four-part dialogue between Tillman and Kalt.  Kalt's response can be found here, Tillman's reply can be found here, and Kalt's final rejoinder can be found here.]

To a fair-minded person assessing the broad ramparts of American constitutional scholarship, it is striking how little attention legal scholars and public intellectuals pay to the text of the United States Constitution.  The document is a mystery to many of them.  Mostly they concern themselves with prior judicial decisions.  If a clause is not litigated, it is, as Judge Posner put it, off their "radar screen."[1]  Even where a particular constitutional provision is the subject of litigation, the judicial opinions almost invariably lead to scholarship assessing the propriety of the decision, as opposed to still-open aspects of the clause's meaning.  Thus the history of our legal scholarship leads to an ever narrowing legal imagination, with the rhetoric of debate escalating over constantly declining intellectual stakes.

But as citizens and lawyers interested in policy reform, including the institutional reform of our governing bodies, we should not limit ourselves to these narrow disputes.  The whole of the Constitution is within our grasp, if we would but seize it.  And, even today, the Constitution remains chock-full of unused (and therefore judicially untested and unapproved) powers whose potential might be used, or, at least, explored.[2]

One such power is the power of a Senate majority[3] to terminate a presidential recess appointment.  The Recess Appointments Clause, Article II, Section 2, Clause 3, states:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Certain aspects of this clause have been adjudicated and are much discussed in the academic literature.  For example, it has been questioned whether this power extends to the President's making appointments to the Article III courts,[4] whether the President can make a recess appointment after the Senate has returned from its recess to an office which had become vacant during (or prior to) the recess,[5] and whether the President can make a recess appointment during a recess to a statutory office that had never before been filled.[6]  These debates uniformly go to the limits of the President's power to appoint under the terms of the clause.  There is no discussion of any concomitant removal power—it is just assumed that the removal power (wherever it is vested) with regard to recess appointments is coextensive with the removal power generally.  This short article seeks to test that assumption.

A Pragmatic Defense of Originalism

By John O. McGinnis & Michael B. Rappaport

Abstract:

In this brief essay, we offer a new defense of originalism that focuses on its consequences.  We argue that interpreting the Constitution according to its original meaning is more likely to produce good results today than non-originalist theories of interpretation.  We thus offer a defense of originalism that transcends previous arguments that originalism is to be preferred because of the constraints it imposes on judges or because of its consonance with the rule of law.

Our argument proceeds in four steps.  First, entrenched laws that are desirable should take priority over ordinary legislation, because such entrenchments operate to establish a structure of government that preserves democratic decisionmaking, individual rights, and other beneficial goals.  Second, appropriate supermajority rules tend to produce desirable entrenchments.  Third, the Constitution and its amendments have been passed in the main under appropriate supermajority rules and thus the norms entrenched in the Constitution tend to be desirable.  Finally, this argument for the desirability of the Constitution requires that judges interpret the document based only on its original meaning because the drafters and ratifiers used only that meaning in deciding to adopt constitutional provisions.

Click Here to Download This Short Essay

Copyright 2007 Northwestern University

Cite As: 101 Nw. U. L. Rev.  (forthcoming 2007); 101 Nw. U. L. Rev. Colloquy 68 (2007), http://www.law.northwestern.edu/lawreview/colloquy/2007/1/.

Persistent URL: http://www.law.northwestern.edu/lawreview/colloquy/2007/1/

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[Last updated on October 21, 2008]

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