Getting at Recess Appointments

Just weeks ago, President Obama announced that he would use a recess appointment to make Richard Cordray the director of the Bureau of Consumer Financial Protection.  Cordray had been nominated to the post months earlier, but Senate Republicans blocked his confirmation based on opposition to the agency’s structure and power.  President Obama went forward with the recess appointment despite the fact that the Senate was holding pro forma sessions and thus not officially in recess.  The constitutionality of the President’s decision immediately came under scrutiny, culminating in the release of a Department of Justice memo justifying the appointment.

Similar issues were the subject of a prior Colloquy exchange between Professors Tillman and Kalt. Because that exchange is particularly relevant in light of recent events, we have posted it here for interested readers.

Keeping Tillman Adjournments in Their Place: A Rejoinder to Seth Barrett Tillman

Brian C. Kalt[*]

[download pdf]

[Eds. Note: In light of the interest in our presidential transitions colloquy and the continuing debate over recess appointments, we would like to highlight a debate between Seth Barrett Tillman and Brian C. Kalt that occurred in the first volume of the Colloquy.]

Seth Barrett Tillman’s reply[1] warrants a rejoinder on two points.  First, I reject Tillman’s defense of his claim that the Senate can unilaterally terminate its half of a regular session of Congress.  Second, Tillman argues that the Senate can terminate a special Senate-only session called by the President, and claims that I disagree.  I did not and do not.

Keeping Recess Appointments in Their Place

Brian C. Kalt[*]

[download pdf]

[Eds. Note: In light of the interest in our presidential transitions colloquy and the continuing debate over recess appointments, we would like to highlight a debate between Seth Barrett Tillman and Brian C. Kalt that occurred in the first volume of the Colloquy.]

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.

Keeping Tillman Adjournments in Their Place: A Rejoinder to Seth Barrett Tillman

By Brian C. Kalt[*]      

[Editor's Note:  This piece is the last of a four-part dialogue between Tillman and Kalt.  You can find Tillman's first piece here, Kalt's first reply here, and Tillman's reply here.]                

Seth Barrett Tillman’s reply[1] warrants a rejoinder on two points.  First, I reject Tillman’s defense of his claim that the Senate can unilaterally terminate its half of a regular session of Congress.  Second, Tillman argues that the Senate can terminate a special Senate-only session called by the President, and claims that I disagree.  I did not and do not.

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.