Pryor's appointment -- was there a "recess"?

Marty Lederman marty.lederman at comcast.net
Tue Mar 9 12:45:17 PST 2004


Sorry:  That link to the Kennedy letter was a dud.  Try this:  http://www.goldsteinhowe.com/blog/files/Kennedy.pryor.pdf
  ----- Original Message ----- 
  From: Marty Lederman 
  To: Bryan Wildenthal ; conlawprof at lists.ucla.edu 
  Sent: Tuesday, March 09, 2004 12:40 PM
  Subject: Re: Pryor's appointment -- was there a "recess"?


  Senator Kennedy has written to the judges of the Eleventh Circuit urging them to consider sua sponte whether the Constitution permits Judge Pryor to adjudicate cases.  http://kennedy.senate.gov/index_high.html  The attached memo raises the question whether there was a "recess" during the ten-and-a-half day adjournment in which the President made the Pryor appointment.  The Kennedy memo cites a CRS memo dated March 2d (http://www.goldsteinhowe.com/blog/files/CRS.Recess.memo.pdf), which lists the thirteen previous instances in which a President has made an intrasession recess appoitment to an article III court.  The first of those appointments was during a 73-day recess in 1867.  The other twelve all occurred between 1947 and 1954, during recesses that lasted anywhere from five to 21 weeks.  It appears, then, that the Pryor appointment was made during an intrassession adjournment far shorter than any other other during which a person has been appointed to an article III court.  (Please note:  I am not here making any argument as to whether the shortness of the Senate adjournment in this case does or should make a constitutional difference.)
    ----- Original Message ----- 
    From: Marty Lederman 
    To: Bryan Wildenthal ; conlawprof at lists.ucla.edu 
    Sent: Monday, February 23, 2004 1:18 PM
    Subject: Pryor's appointment -- was there a "recess"?


    Bryan Wildenthal writes that "[i]t is highly debatable whether recess appts are proper at all during a short weekend recess, as opposed to a recess between 'sessions' in the sense of the annual sessions."

    He is quite correct that the constitutionality of a "short weekend recess" appointment would be quite debatable.  And on his blog Howard Bashman conveys the view of a reader who suggests that the Pryor nomination itself raises this question because it allegedly was made during a five-day recess.

    As the excerpt from a 1979 OLC Opinion quoted below indicates, there's real question whether a five-day Senate break -- or even a ten-day adjournment -- is a "recess" for purposes of recess appointments.  Attorney General Daugherty opined in 1921 as follows, 33 Op. A.G. 20, 25:

    "[N]o one, I venture to say, would for a moment contend that the Senate is not in session when an adjournment of [two days] is taken. Nor do I think an adjourment for 5 or even 10 days can be said to constitute the recess intended by the Constitution.  In the very nature of things the line of demarcation can not be accurately drawn. To paraphrase the very language of the Senate Judiciary Committee Report, the essential inquiry, it seems to me, is this: Is the adjournment of such duration that the members of the Senate owe no duty of attendance? Is its chamber empty? Is the Senate absent so that it can not receive communications from the President or participate as a body in making appointments?"

    According to Louis Fisher's monograph on recess appointments (http://www.senate.gov/reference/resources/pdf/RL31112.pdf), a DOJ brief in 1993 (Memorandum of Points and Authorities in Support of Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment, at 24-26, Mackie v. Clinton, Civ. Action No. 93-0032-LFO (D.D.C.)) suggested that recess appointments might be justified for recesses in excess of three days.

    Whether the limit is three, five, or ten days, however, it appears that the Pryor nomination was made during a recess of just over ten days, lasting from 8:49 p.m. on February 12 until noon today.  See http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?position=all&page=S1415&dbname=2004_record.

    I leave it to others to debate whether an adjournment of that length constitutes a "recess."



    Excerpt from 1979 OLC opinion, 3 Op. O.L.C. 314, 315-16:

    The question whether an intrasession recess of the Senate constitutes a recess within the meaning of Article II, Section 2, Clause 3, of the Constitution has a checkered background. Attorney General Knox ruled in 1901 that an adjournment of the Senate during the Christmas holidays, lasting from December 19, 1901, to January 6, 1902, was not a recess during which the President could make recess appointments. 23 Op. Att'y. Gen. 599 (1901). That interpretation was overruled in 1921 by Attorney General Daugherty, who held that the President had the power to make appointments during a recess of the Senate lasting from August 24 to September 21, 1921. 33 Op. Att'y. Gen. 20 (1921). The opinion concluded that there was no valid distinction between a recess and an adjournment, and it applied the definition of a recess described by the Senate Judiciary Committee in its report of March 2, 1905: 
    the period of time when the senate is not sitting in regular or extraordinary session as a branch of the Congress, or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments * * *. [S. Rept. 4389, 58th Cong., 3d sess., 1905; 39 CONGRESSIONAL RECORD 3823. [(Emphasis added.)] 
    The Attorney General, however, closed with the warning that the term 'recess' had to be given a practical construction. Hence, he suggested that no one 'would for a moment contend that the Senate is not in session' in the event of an adjournment lasting only 2 days, and he did not believe that an adjournment for 5 or even 10 days constituted the recess intended by the Constitution. He admitted that by 'the very nature of things the line of demarcation cannot be accurately drawn.' He believed, nevertheless, that: 
    the President is necessarily vested with a large, although not unlimited, discretion to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent of the Senate. Every presumption is to be indulged in favor the validity of whatever action he may take. But there is a point, necessarily hard of definition, where palpable abuse of discretion might subject his appointment to review. 
    This opinion was cited and quoted with approval by the Comptroller General in 28 Comp. Gen. 30, 34 (1948), and reaffirmed by Acting Attorney General Walsh in 1960 in connection with an intrasession summer recess lasting from July 3, 1960, to August 15, 1960. 41 Op. Att'y Gen. 463 (1960). Presidents frequently have made recess appointments during intrasession recesses lasting for about a month.
    In the winter of 1970 the Senate recessed from December 22 to December 28, 1970, and the House adjourned from December 22 to December 29, 1970. When the Office was informally approached about possible appointments during that recess, we advised against their making in the light of the warning in Attorney General Daughtery's opinion.



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