Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt

Seth Barrett Tillman[*]

[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.]

In my opening article,[1] I took the position that although the Recess Appointments Clause[2] is traditionally imagined as merely a grant of authority to the President, it grants a coordinate power to the Senate.  If the Senate chooses to end its next session, the President's recess appointment has been terminated.

Professor Kalt acknowledges that the end of the Senate's session terminates a recess appointment, even if the recess is made only for an instant and only for the purpose of terminating recess appointees.[3]  Beyond that, he voices some thoughtful constitutional objections to my proposal.  Finally, he suggests that the proposed innovation, which he colorfully calls a "Tillman adjournment," is muddled by "practical problems" rendering it "pointless at best."[4]

Senate Termination of Presidential Recess Appointments

Seth Barrett Tillman[*]

[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.]

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.

Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt

By Seth Barrett Tillman[*]

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

In my opening article,[1] I took the position that although the Recess Appointments Clause[2] is traditionally imagined as merely a grant of authority to the President, it grants a coordinate power to the Senate.  If the Senate chooses to end its next session, the President's recess appointment has been terminated.

Professor Kalt acknowledges that the end of the Senate's session terminates a recess appointment, even if the recess is made only for an instant and only for the purpose of terminating recess appointees.[3]  Beyond that, he voices some thoughtful constitutional objections to my proposal.  Finally, he suggests that the proposed innovation, which he colorfully calls a "Tillman adjournment," is muddled by "practical problems" rendering it "pointless at best."[4]

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.