lawnjk at LANGATE.GSU.EDU
Wed Apr 3 13:29:42 PST 2002
I agree that the Recess Appointments Clause seems screwy in allowing the President to make a recess appointment that lasts so long and also in allowing the President to make an appointment during a very brief intrasession recess (in this case just two weeks). On reflection, the provision might not be quite so screwy. First, it reflects the view that generally the president should have his man or woman. Outside judicial appointments, the vast majority of officers are immediately accountable presidential subordinates. Second, it creates a strong incentive for the Senate to act on the president's nominees. Going back to a recent thread, this offers structural support for the conclusion that Senate procedure does not violate the Constitution when it allows a single committee to effectively kill a nomination. Moreover, Congress has plenty of tools available to blunt the clause's screwiness. In addition to the Pay Act, the Senate acting alone can remain in pro forma session and deprive the president of the predicate for making a recess appointment.
>>> tushnet at LAW.GEORGETOWN.EDU 04/03/02 09:27AM >>>
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
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