Constitutional Settlements and the Recess Appointments Clause

We have now learned a good deal (some might say too much) about the Recess Appointments Clause, and it is time to consider how this knowledge might be employed for the betterment of the Republic. The many open questions regarding the interpretation and application of the RAC are an invitation to constant disputation and uncertainty regarding the validity of recess appointments. The executive branch’s theories are broad enough to allow the President to fill any vacancy at virtually any time, and to keep it filled throughout his term (and beyond), without Senate participation. Meanwhile, there are respectable counter-arguments, some of which have enjoyed wide currency in Congress, that cast doubt on the validity of the vast majority of modern recess appointments.

This is not a healthy situation. As Donald Morgan notes in Congress and the Constitution 25 (1966), “satisfactory settlement of constitutional questions is . . . necessary [because] [f]ailure to achieve settlement may cause inconvenience, confusion, disorder, retaliation, violence, and even civil war.” In the present case it may also cause embarrassment, as politicians, lawyers and the like rush to switch sides depending on whose ox is being gored. (For an example, see Adam White’s cleverly titled “Confirmation Bias”).

But how to reach a constitutional settlement? Many would argue, or simply assume, that this can be achieved only by a Supreme Court decision. As the courts like to remind us incessantly, it is their province to “say what the law is.” Until they say, the theory goes, who knows what the law is?

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Burying the Multi-Session Recess Appointment Theory

In a recent post on the Recess Appointments Clause, I argued that the current method (the multi-session recess appointment theory) for determining the tenure of a recess appointee is based on “precedent” which does not amount to a hill of beans. It is time now to consider afresh the question of how one ought to determine the end of the Senate’s “next session” for purposes of the RAC.


The Reciprocal Meaning of Recess and Session

Discussion of the term “recess” has generally agreed that it may refer, both today and at the time the Constitution was written, to suspensions of business of any duration. With regard to today’s usage, Professor Hartnett notes “as anyone who has ever attended elementary school, a committee meeting, or a trial can attest, a ‘recess’ is quite frequently a rather short break.” With regard to usage in the late 18th and early 19th centuries, the 11th Circuit states that “recess” was “a general term for the suspension of business,” pointing to Samuel Johnson’s “A Dictionary of the English Language” (1755) and Noah Webster’s “An American Dictionary of the English Language” (1828).

The term “session,” as used today, can refer to  “a single continuous sitting, or period of sitting, of persons so assembled,” or “a continuous series of sittings or meetings of a court, legislature, or the like.” Thus, we might refer to “the afternoon session,” or “today’s session,” or the “fall session.” The degree of continuity is relative; saying that the Senate is “in session” might mean that Senators are currently on the floor conducting business, or that the Senate is conducting business today, or that the Senate is “in town” and meeting from time to time.

Although both “recess” and “session” can be used in different senses, one sense is as mutually exclusive statuses of a legislative body. As Senator Gore explained in 1814, “[t]he time of the Senate  consists of two periods, viz: their session and their recess.”

This usage of the terms “session” and “recess,” which Hartnett terms the “reciprocal” usage, was recognized in the 18th century. Thus, Johnson’s dictionary defines “session” as “an assembly of magistrates or senators” or “the space for which an assembly sits without intermission or recess.” Put another way, a “recess” would break the continuity of a “session” and thereby end it. An “intra-session recess” would therefore be oxymoronic.

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