Recess appointments

[Mark Tushnet]

In response to Ed Hartnett's request:  My initial reaction was that the
recess appointment would end in January 2003.  The textual point about
"next" gave me some pause, but it seemed to me a screwy way to design a
Constitution if recess appointments could last so long.  Also, I wasn't
convinced that the constitutional term "session" referred to the
now-conventional divisions of "Congresses" into a first and a second
session, although I didn't know enough about early practice to be sure.

Then the reference to the Attorney General's opinion shook me.  I read
the opinion, and it does assert the equivalent of the proposition that
the appointment terminates in January 2004.  The opinion as a whole is
directed at a quite different set of issues, though, and there's no
analysis (in that opinion) of this particular question.  Further, the
passage asserting the equivalent of the 2004 termination date begins
with the word "presumably" (although the discussion preceding the
passage deals with whether special sessions count as "sessions," and
concludes that they don't; "presumably" might refer to the possibility
of an intervening special session that *would* count).

Finally the 1960 opinion notes that, as of that date, there would be
problems in paying recess appointees beyond the equivalent of January
2003.  I don't know whether the relevant statutes have changed (I know
that there were some changes after the Bill Lan Lee episode with respect
to "Acting" appointees), but the 1960 opinion does advise the president
to notify the Senate and resubmit the nominations when the Senate
reconvenes, to protect the recess appointees' salaries.

It still strikes me as screwy to let a recess appointment, which is
provided for only to deal with the problem of running a government when
the Senate isn't in session, last not only through a substantial period
when the Senate is in session, but through the next election as well.
But, on reflection, the alternative interpretations of "next" aren't
attractive either.
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