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A Tenuous Recess Appointment in Virginia

An interesting recess appointment issue has arisen in the Commonwealth of Virginia. Article VI, section 7, of the Virginia constitution provides that justices of the state supreme court, who serve for 12 year terms,  “shall be chosen by the vote of a majority of the members elected to each house of the General Assembly.” Under Article V, section 7, the constitution also provides that “[t]he General Assembly shall, if it is in session, fill vacancies in all offices which are filled by election by that body.”

The governor, however, has the “power to fill vacancies in all offices of the Commonwealth for the filling of which the Constitution and laws make no other provision.” Va. Const., art. V, § 7. This includes making temporary appointments to fill supreme court vacancies when the General Assembly is not in session: “Gubernatorial appointments made to fill vacancies in offices which are filled by election by the General Assembly . . ., made during the recess of the General Assembly, shall expire at the end of thirty days after the commencement of the next session of the General Assembly.” Id.

These provisions came into play earlier this year when a sitting justice of the Virginia Supreme Court (LeRoy F. Millette, Jr.) announced his retirement effective at the end of July. Because the General Assembly was not in session, Governor McAuliffe recess appointed Fairfax Circuit Court Judge Jane Marum Roush to fill the vacancy on a temporary basis. No one disputes that this was within the governor’s power under the above-cited provisions.

Matters became more complicated, though, when McAuliffe called a special session of the General Assembly to consider revising the state’s congressional districting map, which had been struck down by the federal courts. See Va. Const., art. IV, § 6 (“The Governor may convene a special session of the General Assembly when, in his opinion, the interest of the Commonwealth may require . . . .”). The General Assembly convened on August 17, 2015, pursuant to the governor’s call.

Once the special session convened, the General Assembly undeniably had the power to elect a “permanent” (i.e.. for the remainder of the 12-year term) replacement for Justice Millette. Republicans in the legislature attempted to elect another judge to fill the seat, but this move was blocked in the senate. The senate then voted to adjourn sine die. The house, however, neither adjourned nor consented to the senate’s adjournment.

Everyone agrees that when the General Assembly convened on August 17, it commenced the “next session” of the General Assembly following Roush’s recess appointment. Thus, the thirty-day clock started on August 17, and Roush’s appointment expired on September 16.

The controversy centers on whether the senate’s vote to adjourn sine die has ended the General Assembly’s special session. If not, the General Assembly remains in session and retains the power and responsibility to fill the seat that Judge Roush had temporarily occupied.

This is the view of the speaker of the Virginia House of Delegates. In a letter to the governor, the speaker relies primarily on the following provision of the Virginia constitution: “Neither house shall, without the consent of the other, adjourn to another place, nor for more than three days.” See Va. const., art. IV, § 6. This “clear, unambiguous and emphatic” language, according to the speaker, establishes that the senate cannot unilaterally end the General Assembly’s session. Thus, the senate’s adjournment sine die was ineffective and the General Assembly remains in session. Under the speaker’s position, the General Assembly’s session would not end until both houses agree to adjourn or until “dissolution by the efflux of their time,” which would presumably occur at the beginning of the new legislative session in 2016. Cf. House Rules and Manual § 590 (Jefferson’s Manual of Parliamentary Practice).

The governor’s position, explained by his counsel Carlos L. Hopkins, is otherwise. Hopkins maintains that the senate’s adjournment sine die was effective. His primary argument is that the adjournments clause relied on by the speaker applies only to regular sessions, not to special sessions. As an additional (or possibly alternative) ground, he contends that “the lack of continuous activity or remaining business before the General Assembly argues against the body continuing to remain in session.”

Based on the legal position that the General Assembly was no longer in session, the governor gave Roush a second recess appointment after her first one expired.

Key to assessing these competing claims is understanding the history of the relevant provisions of the Virginia constitution and their relationship to the corresponding provisions in the U.S. Constitution. I do not purport to be an expert on the Virginia constitution, but I am well acquainted with the law and practice of recess appointments at the federal level (click on the “Recess Appointments” category to the right if you don’t believe me).

This background plus the research set forth below convinces me that the Virginia adjournments clause applies to special sessions and thus the senate’s adjournment on August 17 was ineffective. The argument that the General Assembly is no longer in session because it has ceased to conduct any business is somewhat stronger, but, for the reasons set forth below, the better view is that the General Assembly remains in session. Accordingly, Governor McAuliffe’s second recess appointment of Judge Roush appears to be invalid.

BACKGROUND

A. The Virginia Constitution of 1776

The 1776 constitution provided that the General Assembly “shall meet once, or oftener, every year.” It further stated:

 Each House of the General Assembly may adjourn themselves respectively. The Governor shall not prorogue or adjourn the Assembly, during their sitting, nor dissolve them at any time; but he shall, if necessary, either by advice of the Council of State, or on application of a majority of the House of Delegates, call them before the time to which they shall stand prorogued or adjourned.

This provision seems clear that the governor has a limited power to convene the General Assembly, but no power to “prorogue” (terminate a legislative session) or otherwise to adjourn or dissolve it. It is also clear that each house may adjourn itself unilaterally, although whether this power of adjournment includes the power to formally terminate a legislative session is not specified. There is no suggestion that the adjournment power differs depending on whether it is a regular session or a special session called by the governor.

B. The U.S. Constitution

Article I of the U.S. Constitution provides that “Congress shall assemble at least once in every Year.” U.S. const., art. I, §4, cl. 2. The Adjournments Clause, also in Article I, provides: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.” Id. §5, cl. 4.

Article II provides that the President “may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper.” U.S. const., art. II, § 3. Thus, the President has two powers that were not given to the governor of Virginia: (1) the power to convene either house individually and (2) a limited power to adjourn both houses in cases of disagreement between them.

Although the Adjournments Clause is contained in Article I, as far as I know it has never been disputed that it applies to extraordinary sessions of Congress called by the President under Article II. (By its terms the Clause would not apply to instances where a single house is convened because then there would be no “session of Congress”). The purpose of the Adjournments Clause, “to prevent one house from unilaterally making legislative work impossible,” see Edward Hartnett, Recess Appointments of Article III Judges: Three Constitutional Questions, 26 Cardozo L. Rev. 377, 379 (2005), would seem to be equally applicable to extraordinary sessions. And it would make no sense for the President’s tie-breaking role in Article II to apply only to regular sessions and not to extraordinary sessions.

Equally importantly, congressional practice confirms the applicability of the Adjournments Clause to extraordinary sessions. See, e.g., Annals of Congress 1274 (Mar. 3, 1815) (agreement of House and Senate to end extraordinary session called by President Madison to address the War of 1812). Again as far as I know, every extraordinary session of Congress has been concluded by the concurrent resolution of both houses (or by the “efflux of their time”), not by the unilateral action of one house.

C. The Virginia Constitution of 1830

The Virginia convention of 1829-30 assembled to revise and replace the 1776 constitution. The convention “counted among its delegates James Madison, James Monroe, John Randolph, and John Tyler, among others, and was described by the reporters of the convention debates as ‘an assembly of men . . . which has scarcely ever been surpassed in the United States.’” John J. Dinan, The American State Constitutional Tradition 13 (2009). It is fair to say that this body also knew a thing or two about the federal constitution and its interpretation.

One of the proposals debated at the convention was to strike out the old provision that “Either House may adjourn itself” and insert the following language, which is virtually identical to the federal Adjournments Clause: “Neither House, during the session of the Legislature shall, without the consent of the other, adjourn for more than three days, nor to any other place that that in which the two Houses shall be sitting.” Proceedings and Debates of the Virginia State Convention of 1829-1830 799. A major reason for this proposal was apparently that the senate had a habit of adjourning for several weeks at a time so that senators could visit their families, leaving the house unable to complete legislative business. The amendment’s sponsor pointed to the federal Adjournments Clause and similar provisions in other state constitutions, arguing that the two houses “ought to be together, and the one not to adjourn without the other.” Id. (Mr. Chapman).

An objection was made, however, that retaining the old provision would have the salutary effect of preserving “the power of prorogation” in “each House, as it respected the other.” Id. (Mr. Leigh). There was some discussion as to whether the power of unilateral adjournment under the prior constitution was properly  considered a power of prorogation. See id. at 800 (“If he could subscribe to the opinion that a power to adjourn in one House, was a power to prorogue the other, he was sure the Convention would never assent to any such measure”) (Mr. Nicholas); see also id. at 802 (questioning whether the prior provision was actually intended to be used for prorogation) (Mr. Mercer). But it seemed to be generally agreed that the prior constitution allowed either house to permanently adjourn without the other’s consent, thereby effectively (if not formally) ending the legislative session.

Some agreed with Mr. Leigh that this was a good (or at least a harmless) thing, as there was no reason to force one house to stay in session if it was determined to take no further action. Others, however, contended that the power could be abused. Mr. Coulter, for example, contended that “[i]t might happen that the Lower House would reject a bill by a bare majority when many were absent, and might then adjourn to prevent re-consideration.” Id. at 801.

At the end of the day, the convention adopted the proposed amendment, thus making it clear that one house could not unilaterally end a legislative session. Id. at 803.

As ultimately adopted, the 1830 constitution was structured similarly to the U.S. Constitution with respect to the issues of adjournment and special sessions. Thus, Article III of the 1830 constitution, relating to the legislative branch, provided in part:

9. The General Assembly shall meet once or oftener every year. Neither house, during the session of the Legislature, shall without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting. A majority of each House shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and shall be authorized to compel the attendance of absent members, in such manner and under such penalties as each House may provide. And each House shall choose its own Speaker, appoint its own officers, [and] settle its own rules of proceeding. . . .

(emphasis added). Meanwhile, Article IV, relating to the executive branch, provided in part:

4. [The Governor] shall take care that the laws be faithfully executed; shall communicate to the Legislature, at every session, the condition of the Commonwealth, and recommend to their consideration such measures as he may deem expedient. He shall be Commander-in-chief of the land and naval forces of the State. He shall have power to embody the militia, when in his opinion, the public safety shall require it; to convene the Legislature, on application of a majority of the members of the House of Delegates, or when, in his opinion, the interest of the Commonwealth may require it; . . .and during the recess of the Legislature, to fill, pro tempore, all vacancies in those offices, which it may be the duty of the Legislature to fill permanently; Provided, That his appointments to such vacancies shall be by commissions to expire at the end of the next succeeding session of the General Assembly.

(emphasis added).

The quoted provisions, as well as their division in separate articles, closely track the federal Constitution. Although the Virginia convention did not expressly discuss whether the adjournments clause would be applicable to special sessions called by the executive, there is no more reason to doubt its applicability under the 1830 constitution than under the U.S. Constitution. Indeed, there is less because the framers of the 1830 constitution would have been familiar with congressional practice during extraordinary sessions called by the President.

Moreover, any argument that the structure of the 1830 constitution somehow militates against requiring the agreement of both houses to adjourn a special session would be meritless. Clearly the quoted provisions of Article III, including the quorum requirement, the authority to select officers and settle rules of proceeding, and the adjournments clause, apply to all legislative sessions, not just to regular sessions. It is difficult to imagine anyone seriously arguing to the contrary.

D. The Virginia Constitution of 1971

Since adoption of the 1830 constitution, the Virginia constitution has gone through five additional major revisions (1851, 1864, 1870, 1902 and 1971). Not having any reason to believe that these intermediate revisions and reorganizations are relevant to the issues at hand, however, I will proceed to the pertinent sections of the current constitution, which was adopted in 1971.

Article IV, still dealing with the legislative branch, provides in part:

Section 6.  Legislative sessions.

The General Assembly shall meet once each year on the second Wednesday in January. Except as herein provided for reconvened sessions, no regular session of the General Assembly convened in an even-numbered year shall continue longer than sixty days; no regular session of the General Assembly convened in an odd-numbered year shall continue longer than thirty days; but with the concurrence of two-thirds of the members elected to each house, any regular session may be extended for a period not exceeding thirty days. Neither house shall, without the consent of the other, adjourn to another place, nor for more than three days.

The Governor may convene a special session of the General Assembly when, in his opinion, the interest of the Commonwealth may require, and shall convene a special session upon the application of two-thirds of the members elected to each house.

The General Assembly shall reconvene on the sixth Wednesday after adjournment of each regular or special session for the purpose of considering bills which may have been returned by the Governor with recommendations for their amendment and bills and items of appropriations bills which may have been returned by the Governor with his objections. No other business shall be considered at a reconvened session. Such reconvened session shall not continue longer than three days unless the session be extended, for a period not exceeding seven additional days, upon the vote of the majority of the members elected to each house. The General Assembly may provide, by a joint resolution approved during a regular or special session by the vote of the majority of the members elected to each house, that it shall reconvene on a date after the sixth Wednesday after adjournment of the regular or special session but no later than the seventh Wednesday after adjournment.

(emphasis added).

We now turn to an analysis of these provisions.

 

ANALYSIS

In his September 15, 2015 letter, Mr. Hopkins, the governor’s counsel, contends that the General Assembly is no longer in session. He makes two arguments in support of this proposition. First, he contends that the constitutional requirement that both houses consent to adjournment is inapplicable to special sessions, and therefore the Virginia senate properly adjourned sine die on August 17, 2015. As explained below, this argument is clearly wrong.

The second argument seems to be that even if the senate’s adjournment was improper, the General Assembly should be considered as no longer in session because neither house is meeting or conducting business. This argument is more plausible that the first, but at the end of the day it is also unpersuasive.

 A. Is the Virginia Constitution’s Adjournments Clause Applicable to Special Sessions?

Hopkins begins his argument with the “fundamental principle” that the Virginia constitution provides for “time-limited sessions,” which he contends is “the key structural distinction between the Virginia General Assembly and the United States Constitution, as well as other states’ full-time legislatures.” Although not explicitly stated, the import of this distinction appears to be that the Virginia adjournments clause should be construed as applicable only to time-limited regular sessions, even though in other constitutions similar or identical language is applicable to both regular and special sessions.

The logic here is hard to follow. Hopkins suggests that the rationale for requiring both houses to consent to adjournment in a time-limited session is particularly compelling, presumably because a lengthy intra-session adjournment would waste the limited time the legislature has. But as we saw in the debate over the 1830 constitution, time-wasting was a concern even when legislative sessions were not limited (Virginia did not limit the length of sessions until 1851). Moreover, time-wasting was not the only concern—the problem of one house unilaterally ending a session exists regardless of whether it is time-limited. In any event, the fact that the federal and other state constitutions require both houses to consent to adjournment demonstrates that this provision’s utility is not confined to time-limited sessions.

Hopkins also argues that the structure of the Virginia constitution supports the conclusion that the adjournments clause applies only to regular sessions. He notes that the adjournments language “appears at the bottom of the first paragraph of [Article IV, Section 6] addressing regular sessions.” This, he suggests, could mean that the framers of the constitution only intended it to apply to regular sessions: “If there had been intent to include the adjournment clause of three days into the call for a special session, it would have been appropriately included in paragraph 2 or 3 of Article IV, Section 6.”

Even based on the constitutional text alone, this is a very weak argument. When the framers of the constitution intended a particular provision to apply only to regular sessions, as with the time limitations of paragraph 1, Article IV, Section 6, they said so expressly. The fact that the adjournments clause by its terms is not limited to regular sessions indicates that no such limitation was intended.

Moreover, there is nothing else in the constitutional text that would conflict with reading the adjournments clause in its natural sense. As Hopkins concedes, no other provision of the constitution says anything about how special sessions are to be adjourned. At most, therefore, Hopkins could use his structural argument to create an ambiguity in the adjournments clause, but he has no other evidence to warrant reading the clause to mean anything other than what it says.

It should also be noted that this structural argument conflicts with his own theory as to the purpose of the adjournments clause. If the clause were designed to deal specifically with the problem of time-limited sessions, it should certainly apply to reconvened sessions, which are even more time-limited that regular sessions. But the structural argument would suggest that the adjournments clause cannot apply to reconvened sessions because the clause is in paragraph 1 and reconvened sessions are covered in paragraph 3.

Even if Hopkins’s arguments were plausible on the face of the constitutional text, though, the constitutional history demonstrates that they are utterly without merit. The adjournments clause cannot have been intended to deal with the problem of time-limited session because it was incorporated into the Virginia constitution in 1830, when sessions were not time-limited. The debates from the 1829-30 convention show that the delegates wanted to ban unilateral adjournment by one house, including unilateral final adjournment, by adopting language that was virtually identical to that in the federal Constitution. It is therefore clear that the adjournments clause in the 1830 constitution, like the U.S. Constitution, applied to both regular and special sessions. Hopkins provides no reason to dispute this conclusion, and he seems to implicitly concede that the federal Adjournments Clause applies to all sessions.

In the 1830 constitution, the adjournments clause was part of the article governing the legislative branch, and  it immediately followed the basic rule on meetings of the General Assembly (i.e., that the General Assembly must meet once a year or “oftener”). The governor’s power to call special sessions, by contrast, was part of the article governing the executive branch and was included in a paragraph listing a number of different gubernatorial powers. This broad structure mirrors that of the federal Constitution, where the Adjournments Clause is part of Article I, while the President’s power to call extraordinary sessions is in Article II.

The current Virginia constitution, adopted in 1971, reorganizes these authorities so that the governor’s power to call special sessions is now part of Article IV, governing the legislative branch, and Section 6, dealing specifically with legislative sessions. The adjournments clause is still part of the first paragraph that begins with the basic rule on meetings of the General Assembly (i.e., the General Assembly meets once a year on the second Wednesday in January), while the governor’s authority to call special sessions is in the following paragraph. The notion that this reorganization somehow changed the meaning of the adjournments clause or made it inapplicable to special sessions borders on the nonsensical.

Finally, we should make brief mention of Hopkins’s claim that the authority of each house to settle its own rules of proceeding somehow allows the senate to decide that the adjournments clause is inapplicable to special sessions. But the point of the adjournments clause is to require both houses to consent to adjournment. The senate’s view that the clause is inapplicable to special sessions (if in fact that is the senate’s view) is not entitled to any more deference than the house’s contrary view.

 

B. Did the General Assembly Cease to be in Session as the Result of the “Lack of     Continuous Activity or Remaining Business”?

Although, for the reasons already stated, it seems clear that the senate’s adjournment sine die violated the adjournments clause, one might argue that the General Assembly has nonetheless ceased to be in session. As Hopkins notes (correctly, I assume), neither house has held any meetings or conducted any business since the senate’s adjournment. The members have presumably returned to their homes (and campaigns) and evidently do not intend to elect a new supreme court justice or conduct any other business until the next regular session which will begin in January.

At first blush, this argument is not implausible. I have argued that the question of whether Congress is in “session” or in “recess” may be viewed as an essentially factual question: “If Congress (or the Senate) is assembled at the seat of government, it is in session, though it may take day-to-day or other brief adjournments of the type expressly contemplated by the Constitution. On the other hand, if Congress adjourns so that its members may return home, it is in recess, regardless of what the parliamentary formalities say.”

There are several reasons, however, why a “de facto” approach to the recess/session question will not help the governor here. First, even under a de facto or functional approach, there must be a parliamentary action to trigger the recess/adjournment in question. For example, at the federal level the executive branch has taken a functional approach to determining whether the Senate is in recess, but it has always done so in the context of a formal adjournment by the Senate. As I noted in the context of the Noel Canning litigation, “[a]bsent this trigger, the President would have virtually unlimited discretion to find a recess at any time.”

In the Noel Canning case, President Obama made recess appointments during a period in which the Senate, pursuant to a resolution it had adopted, held pro forma sessions every three days. The administration argued that these sessions should be disregarded because they were “sessions in name only,” which Senators were not expected to attend and at which no business was to be conducted. NLRB v. Noel Canning, 573 U.S. ___ (2014). The administration maintained that the Senate should be viewed as remaining in a functional or de facto “single, unbroken recess” for the purpose of the Recess Appointments Clause. In response to the argument that this would result in the violation of the Adjournments Clause (because the House had not consented to the adjournment), the administration responded that the House’s consent was irrelevant to recess appointments because they are a matter of executive business between the President and the Senate.

The Supreme Court held the President lacked the authority to make these recess appointments. The majority applied a qualified formalistic approach, holding that the Senate’s pro forma sessions count as sessions, not as periods of recess, so long as the Senate retains the capacity to conduct business (which it did). The administration’s plea for a more searching factual inquiry into the Senate’s status was, among other things, impractical. See Noel Canning, 573 U.S. at __ (“From a practical perspective, judges cannot easily determine such matters as who is, and who is not, in fact present on the floor during a particular Senate session.”).

The Court also found short Senate adjournments that did not require the House’s consent under the Adjournments Clause were not the type of “recesses” that give rise to the President’s recess appointment authority. See id. at __ (“If a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause.”) Counting the pro forma sessions meant that the Senate’s adjournments were too short to permit recess appointments; hence the Court held the appointments invalid.

The Noel Canning decision is not controlling with regard to the interpretation of the Virginia constitution, but its reasoning tends to further undercut the governor’s position. Its formalist approach suggests that the first question is whether there has been a formal parliamentary action ending the legislative session. Here there has been no adjournment by the General Assembly, only a purported adjournment by one house. Nor is it possible to argue, as the Obama administration did in Noel Canning, that the lack of consent by the other house is irrelevant to the recess appointments issue. Unlike the federal Constitution, where the Senate alone is responsible for confirming nominees (and where the recess appointment power exists during the recess of the Senate), the General Assembly as a whole has the power to choose supreme court justices. Thus, an adjournment by one house without the other’s consent cannot provide the minimum formality needed to trigger a recess or end the session.

The need for a triggering formality is particularly apparent in the case of the Virginia constitution. Under paragraph 3 of Article IV, Section 6, the General Assembly is required to reconvene on a specific date following adjournment of a regular or special session. This requires precision in determining the date of adjournment, which would be impossible if the determination was dependent on a subjective judgment whether the legislature was engaged in “continuous activity” or had “pending business.” Indeed, if the General Assembly had adjourned on August 17, as Hopkins claims, it would have been constitutionally required to meet in reconvened session on September 23 (or September 30 at the latest). As far as I know, not even the senate has attempted to meet in reconvened session.

The General Assembly, of course, is also not meeting in pro forma sessions as was the Senate in Noel Canning. Hopkins mentions this in a footnote, but under the circumstances it does little to advance his position. Arguably such meetings are not required under the governing joint resolution (HJR 5001), but even if they are, the absence of such meetings is presumably a product of the standoff between the house and the senate. At most, it cancels out the failure to hold a reconvened session and returns one to the question of which house is correct as to its position on the adjournments clause (and, as explained earlier, that dispute must be resolved in favor of the House of Delegates).

What arguably does matter is whether the General Assembly remains capable of acting on legislative business, including the election of supreme court justices. As pointed out by the house speaker, the governing resolution, adopted by the house and senate for purposes of the special session, is House Joint Resolution 5001. This resolution provides in part that “after the special session is convened for the first time, it may stand in recess from time to time until reconvened by the joint call of the Speaker of the House and the Chair of the Senate Committee on Rules to consider such matters as are provided for in this resolution.” Thus, it appears that the General Assembly can be reconvened to conduct business under the governing resolution.

Hopkins argues, however, that there is no remaining business properly before the General Assembly. The special session, he contends, “was convened for a specific purpose, which was to enact a remedial Congressional redistricting plan” in response to a federal court order. Because the federal court deadline of September 1 has expired, Hopkins claims that the purpose of the special session is moot and therefore no further business before the General Assembly.

This is a puzzling assertion. Even if we grant for sake of argument the (dubious) premise that the expiration of the federal court deadline foreclosed the General Assembly from adopting a new redistricting plan, redistricting was not the only business before the General Assembly in the special session. As Hopkins obliquely acknowledges (in footnote 4 of his letter), HJR 5001 identifies five areas of legislative business to be considered during the special session, one of which is “the election of judges and other officials subject to election by the General Assembly.” This business is still pending.

Perhaps Hopkins means to argue that the election of judges is not a proper function of the special session because it was not one of the purposes for which the governor called the special session. But this argument (which Hopkins does not make explicitly) flies in the face of the language of the Virginia constitution, which provides that “[t]he General Assembly shall, if it is in session, fill vacancies in all offices which are fill by election by that body.” Va. const., art. V, § 7 (emphasis added). Thus, once the General Assembly is in session, it has not only the power but the duty to fill any vacancy on the supreme court.

Indeed, it seems to me that there is a serious question whether the governor would have the power to make a second recess appointment even if the General Assembly had in fact ended its session. It may be recalled that it is generally (though not universally) accepted that the literal language of the federal Recess Appointments Clause permits such successive recess appointments, though they have been widely viewed as an abusive practice. The language of the Virginia constitution, however, is quite different in this regard. The governor has the “power to fill vacancies in all offices of the Commonwealth for the filling of which the Constitution and laws make no other provision.” Va. const., art. V, § 7. But once the General Assembly convenes, the Virginia constitution does make “other provision” for filling a supreme court vacancy. The mandatory language with respect to the General Assembly’s duty to fill vacancies, plus the fact that the governor’s recess appointments expire 30 days after the General Assembly convenes (in contrast to federal recess appointments which do not expire until the end of the Senate’s next session), strongly suggest that the governor cannot make another recess appointment after the General Assembly convenes.

In this respect, the Virginia recess appointment authority may be analogized to a different federal provision, the Senate Vacancies Clause (later repealed by the 17th Amendment). See U.S. const., art. I, § 3, cl. 2 (“if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill up such Vacancies.”). This language was interpreted by the Senate to mean that a governor could not fill a Senate vacancy once the state legislature had met and had an opportunity to do so. See Noel Canning, 573 U.S. at __ (Scalia, J., concurring) (describing Senate election case of 1794).

In any event, there is no need to decide this question in the present context. Suffice to say that since neither the governor nor the senate has the power to prorogue the General Assembly during its special session, the attempt to do so improperly cannot augment the governor’s power with respect to making recess appointments, nor deprive the General Assembly of its power to fill the supreme court vacancy.

 

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