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Constitutional Settlement through a Senate Rule

Now I will turn to the question of how a new set of rules governing recess appointments, such as those discussed in my prior post, might be put into place. One possibility is that they could be set forth in a new Senate rule.

This would seem to raise at least two constitutional questions. First, can the Senate by rule take away from the President power that he has (or claims to have) under the Recess Appointments Clause? The answer to this, I think, is no. If the Senate wants the President to forbear from exercising his power under the Recess Appointments Clause (except in the circumstances defined by the Senate rule), it will have to dissuade him from doing so by a combination of (1) offering an alternative system that is superior to the current one from the executive perspective and (2) taking retaliatory action if the President should make recess appointments outside of that system. Given the deficiencies of the current system, this does not appear to be an unreachable goal.

Second, can the Senate by rule authorize the President to make temporary appointments when it is not in “recess”? Theoretically, the answer to this is also probably no. On the other hand, the Senate arguably has the power to declare a recess whenever it pleases. Professor Seth Barrett Tillman, for example, argues that the Senate has the power to end a recess appointment simply by declaring a recess and then reconvening in a new session. (See Tillman and Kalt Colloquy on Senate Termination of Recess Appointments, 103 NW U. L. Rev. 286 (2009)).

The alert reader may observe that this is not my view. True, I do not think that the best reading of the Constitution would deem the Senate’s day-to-day adjournment to be a “recess” within the meaning of the RAC. But if the Senate and the President agree to treat particular adjournments as “recesses,” and the House does not object, who exactly would be harmed by this legal fiction? (It certainly no worse than conducting business without a quorum, as both houses routinely do).

Assuming that we can surmount this hurdle, it would seem relatively easy to structure a Senate rule that would achieve the goals we have discussed. The Senate could deem periodic adjournments (eg, the first adjournment of every month) to be a “recess,” and it could “authorize” temporary appointments to fill any vacancy where a nomination had been pending for more than a certain period (which period, as discussed in my previous post, could vary by nomination). The temporary appointment would expire at the next “recess” following the Senate’s confirmation (or rejection) of the nominee or when the Senate returned the nomination to the President without taking action.

Again, I recognize that this approach would take some liberties with the text of the RAC. But unlike current practice, which is also difficult to square with the text, such an approach would actually advance the purposes of the RAC, while balancing the legitimate interests of the Senate and the President. To quote Professor Tillman (regarding his own proposal, to be sure), “the winner here is not the Senate or the President, but it may be us.” (emphasis in original).

The alternative to this approach would be for Congress to enact a statute governing temporary appointments. I will discuss the pros and cons of that alternative in a future post.

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