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 existence of a recess is determined “[u]nder a framework first articulated by Attorney General Daugherty in 1921, and subsequently reaffirmed and applied by several opinions of the Attorney General and this Office”); id. at 12 (discussing Daugherty’s “seminal opinion”).

The prominence of this opinion is presumably not due to the prestige of its author. No one would describe Harry Daugherty as an “extraordinary lawyer.” At least not in a good way. See L. McCartney, The Teapot Dome Scandal 63 (2008) (describing how Daugherty and a crony entertained President Harding and members of his administration at the H Street house, which they ran “like a combination bordello, gambling den, and speakeasy at a cost of $50,000 a year.”).

But I digress.

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