Recess appointments

[Edward Hartnett]

It seems to me that one can make a reasonable prediction that the next
session of Congress will likely end in late 2003, but cannot be sure of
that prediction because it is ultimately in the hands of Congress.

We are currently in the 107th Congress, 2d session.  The target date for
adjournment of that session is October 4, 2002.  The first session of the
108th Congress -- which will almost certainly be the next session of
Congress -- is set for January of 2003.  The date of adjournment for the
first sessions of recent Congresses have been

107/1; Dec. 20, 01
106/1: Nov. 22, 99
105/1: Nov. 13, 97

Based on this recent experience, one could reasonably predict that the next
session of Congress will end in November or December of 2003.  Sometimes,
however, the first session of a Congress lasts until early January of the
even numbered year, as it did in the 104th Congress (Jan. 1996) and the
102d Congress (Jan. 1992).

If one goes back several decades, however, the first session sometimes
adjourned in August.  For example, the first session of  83d Congress
adjourned on August 3, 1953.  Thus, should the first session of  108th
Congress decide to adjourn earlier than recent Congresses, the recess
appointments could expire earlier.  Indeed, it seems to me that Congress
could, if it chose, deliberately conclude its first session in early 2003,
and begin a second session soon therefter, precisely in order to trigger
the end of recess appointments.

Nothing in the constitution requires that there only be two sessions of
Congress.  Additional sessions used to be common, although the last time
(to my knowledge) that there was a third session of Congress was in the
76th Congress (1939-41).  Should the current Congress, for some reason,
decide to adjourn its current (2d) session early, and then hold a third
session before the 107th Congress itself expires in January of 2003, then
the recess appointment will expire at the end of  _that_ session, or no
later than January of 2003.  I agree that this possibility is remote, but
not completely farfetched:  Suppose Congress manages to meet its target of
adjourning in October -- or at any rate manages to adjourn before the
November elections.  And suppose (God forbid) another terrorist attack or
other world-shaking event occurs after the election.  It is at least
possible that the 107th Congress would hold a third session.

(Since this post is already long enough, I'll ignore a further complication
that the Senate alone could have a special session.)

Ed Hartnett
Seton Hall




                    Mark Tushnet
                    <tushnet at LAW.GEORGET       To:     CONLAWPROF at listserv.ucla.edu
                    OWN.EDU>                   cc:
                    Sent by: Discussion        Subject:     Recess appointments
                    list for con law
                    professors
                    <CONLAWPROF at listserv
                    .ucla.edu>


                    04/02/02 02:33 PM
                    Please respond to
                    Discussion list for
                    con law professors






I just received a press inquiry on the following question, and thought I
could confirm my judgment (which I'll conceal at this point, out of fear
of embarrassment) by inquiring of the list:  Art. II, sec. 2, cl. 3,
says that the president has the power to make recess appointments "which
shall expire at the End of their [the Senate's] next Session."  The
question is, with respect to a recess appointment made last week (the
FEC appointment, the Education Department appointment), when does "the
next Session" end?  January 2003, January 2004, or January 2005?

(See attached file: tushnet.vcf)

-------------- next part --------------
A non-text attachment was scrubbed...
Name: tushnet.vcf
Type: application/octet-stream
Size: 252 bytes
Desc: not available
Url : http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20020402/66ecb4c8/tushnet.obj