Recess appointments--a possible logical story

[Edward Hartnett]

A listing of the dates of all sessions of Congress is available at
http://clerkweb.house.gov/histrecs/househis/lists/sessionsall.htm

Most of the time, Congress has held two sessions, but three sessions have
also been fairly common.

If one envisions the typical recess appointment as one made between
sessions (intersession), then the expiration of the commission at the end
of the next session makes good sense.  It is only when one considers recess
appointments made during an intrasession recess that things look a little
"wacky" -- leading some to argue that recess appointments should only be
available during intersession recesses, not intrasession recesses.

Ed Hartnett
Seton Hall





                    James Lindgren
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                    04/03/02 12:38 PM
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Knowing virtually nothing about Con Law, I had somewhat similar logical
first
impressions to Mark's.

Did "session" in 1787 mean what it does today?

One Possible Story:
A logical way to have designed a provision (though not necessarily what
they
did) would be to allow recess appointments until Congress had a chance to
consider confirmation.  Thus when Congress convenes again after a recess,
it
has a chance to vote on the nomination.  If they adjourn again without
voting
on the recess appointment, the job then terminates (sort of like a pocket
veto).  One must remember that with travel of the day, it made more sense
to
convene for one period and then to be in recess for a period (I do not know
what they actually did), when all could travel home.  If my story were true
and that was how the provision was interpreted today, Congress could meet
for
one day and adjourn--thereby ending a recess appointment--so there is some
logic today in having a longer view of session than just the time between
reconvening and adjourning for a recess.

But an appointment lasting only until the next recess might have seemed
most
logical to them.
Someone might actually have to do some historical research.

Jim Lindgren
Northwestern