Recess Appointments Clause

Addressing non-originalists’ arguments for a broad interpretation of the Recess Appointments Clause, which would allow recess appointments to be made during all legislative breaks of a certain length, and arguing that such an interpretation is unjustifiable.

Arguing that the phrases “the recess” and “vacancies that may happen” were standard terms in Founding-Era legislative practice with a fixed, commonly understood meaning.

Describing the historical background of the Recess Appointments Clause and critiquing the various methods of constitutional interpretation used by Supreme Court justices to interpret the clause.

Contending that the original public meaning of “recess” was ordinary and broad, referring to any time when a legislative body was not conducting business.

Documenting Founding-Era debates and presidential practices involving the Recess Appointments Clause and concluding that the President is not constitutionally empowered to make recess appointments to newly created offices.

Presenting a hypothetical debate between an originalist and a Burkean discussing the best interpretive approach to the Recess Appointments Clause.

Arguing that the history and language of the Recess Appointments Clause, along with the constitutional principle of separation of powers, support a narrow understanding of the Recess Appointments Clause.

Documenting how the clear meaning of the Recess Appointments Clause was lost and arguing that the clause applies only to vacancies occurring during a congressional recess.

Examining the constitutional and historical framework of recess appointments and recommending a bright-line approach in which recess appointments are valid when the Senate has failed to meet a quorum and has conducted no official business for four consecutive days.

Arguing that the Supreme Court should look beyond lower courts’ originalist approach to the Recess Appointments Clause and interpret the clause more creatively and dynamically, which would result in the Court striking down pro forma sessions as unconstitutional.

Suggesting that the original meaning of the Recess Appointments Clause allows the President to make recess appointments to fill vacancies only during constitutional recesses of the Senate.

Arguing that the text of the Recess Appointments Clause and the Framers’ intent in drafting the clause indicate that the President’s power to make recess appointments should be limited to recesses between official sessions.

Arguing that the Framers viewed recess appointments to the federal judiciary as constitutional.