Mort Rosenberg on Recess Appointments

Mort Rosenberg, formerly of CRS and now a Fellow at the Constitution Project, has released a paper entitled: “Understanding the Centrality of the Appointments Clause as a Structural Safeguard of Our Scheme of Separated Powers: The Senate’s Exclusive and Plenary Confirmation Power Trumps Presidential Intrasession Recess Appointments.”

The Executive Summary states:

“The Constitution establishes a procedure for the nomination and appointment of officers of the United States that includes important roles for both the President and the Senate.  The debates of our founding fathers, as well as Supreme Court opinions, explain that these provisions were intended to create important checks and balances on the branches of Government involved.  The Justice Department’s Office of Legal Counsel  opinion, which purports to identify the legal basis of the recess appointments of four individuals to important Government positions this past January, asserts that the President has the unilateral ability to determine the existence of a “recess” for purposes of triggering the President’s recess appointment authority.  This conclusion would appear to undermine the balance of powers that is inherent in the Appointments Clause.  It would also appear to conflict with the constitutional right of the Senate to determine its own rules and procedures.  The use of a pro forma procedure during an intrasession recess of the Senate also raises the unresolved issue of whether any recess appointment can ever be made while the Senate is in such an intrasession adjournment, or instead does this authority only relate to intercessional periods.  While there is no definitive judicial precedent as yet, a review of the constitutional debates, prior court rulings, and the history of recess appointments indicates that the validity of the intrasession recess appointments at issue is questionable, and that compelling arguments may be made that they are invalid.”