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Archive of entries posted on March 2012

Attorney General Daugherty and the “Intra-Session” Recess

We now come to Attorney General Harry Daugherty, whose 1921 opinion still controls the executive branch’s understanding of what constitutes a “recess” within the meaning of the Recess Appointments Clause. See OLC Opinion, “Lawfulness of Recess Appointments during a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions” 5 (Jan. 6, 2012) (noting that the [...]

Attorney General Knox and the Multi-Session Recess Appointment

On December 24,1901, during the administration of Teddy Roosevelt, Attorney General Knox issued an opinion responding to the question whether President Roosevelt could fill a vacant office (the appraiser of merchandise in the district of New York) during the “current holiday adjournment” of the Senate. Both houses had adjourned from December 19, 1901 to January [...]

But They Can Still Vote While Intoxicated, Right?

According to several news accounts in the last week, a Minnesota student group is working to end “legislative immunity from drunk driving arrests.” Apparently someone believes that Minnesota state legislators are immune from arrest for DWI based on Article IV, section 10, of the Minnesota Constitution, which provides that “members of each house in all cases except [...]

A Recess By Any Other Name

We now come to the issue that has been much discussed in connection with President Obama’s January 4, 2012 recess appointments: what constitutes a “recess” within the meaning of the Recess Appointments Clause? The RAC, you will recall, provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the [...]

We Have Another Tie!

This time in Wisconsin, where a Republican state senator (facing a recall election in June) has resigned, leaving the Senate split at 16-16. Unlike Virginia, Wisconsin has no constitutional provision providing for the lieutenant governor (or anyone else) to break ties.  Nor, apparently, is there any statute that says what happens in this situation. According [...]

Senator Stevens and the Strange Evolution of Speech or Debate

Yesterday was the release date for Henry Schuelke’s report on misconduct in the prosecution of the late Senator Ted Stevens. The report, which I have only skimmed, is available here.  In addition, Judge Sullivan’s opinion ordering the public release of the report may be read here. Judge Sullivan summarizes the case for release by noting: [...]

What’s Happening? Rerunning the Wirt-Rappaport Debate on the Recess Appointments Clause

Attorney General Wirt’s interpretation of the Recess Appointments Clause, under which the President may fill vacancies that “happen to exist” during the recess of the Senate, has been followed by the executive branch since Wirt issued his opinion in 1823. A few years ago, Professor Michael Rappaport challenged Wirt’s interpretation, arguing that it was so [...]

Judge Jackson’s Non-decision on Recess Appointments

U.S. District Judge Amy Berman Jackson issued an opinion yesterday regarding a challenge to the validity of a rule promulgated by the National Labor Relations Board (NLRB) to require employers to post notices informing workers of their right to organize a union and conduct other activities under the National Labor Relations Act (NLRA). In its [...]