Intrasession "Recess" Appointments

[Douglas Laycock]

  Marty's numbers are radically different from the numbers the Slate
reporters claims to have gotten from 3 law professors.  30 a year for
Reagan would be 240; Marty has 15.  20 a year for Bush Sr. would be
80; Marty has 5.  9 a year for Clinton would be 72; Marty has 14.  32
by the current Bush would be a huge increase according to Marty; a
huge decrease according to Slate.  I have to wonder if they were
counting two different things.

  The Slate story talks about appointments of acting officials; maybe
including those appointments accounts for the difference.  Or maybe
somebody just has their numbers wrong.  I would bet on Marty against
Slate any day, although the Slate guy claims to have talked to some
pretty good sources.

  Quoting Marty Lederman <marty.lederman at comcast.net>:

> The issue isn't recess appointments, as such -- which are perfectly

> constitutional between sessions of the Senate -- but instead 
> appointments made during intra-session Senate adjournments, 
> particularly those made when the Senate has ample opportunity to 
> consider the nomination.  We explained in the Franklin brief that 
> until 1921, DOJ thought such intra-session appointments were 
> categorically unconstututional.  From 1921-1993, DOJ concluded that

> they were constitutional during long Senate breaks where in a 
> "practical sense" the Senate's advice and consent could not be 
> obtained.  Thus, prior to 1982, Presidents virtually never made 
> intra-session recess appointments during Senate adjournments of 
> shorter than one month (with two isolated exceptions being 
> intra-session appointments that Presidents Harding and Coolidge
made
> in 1921 and 1928, respectively), and on only one occasion (in 1928)

> did a President make an intra-session recess appointment fewer than

> nine days before the Senate's return.
>
> We wrote:
>   More recently, however, there has been a sea change in Executive 
> practice and constitutional understanding. In a district court
brief
> in 1993, the Executive branch first broke with the 204-year-long 
> tradition . . . reflected in the Knox and Daugherty [AG] Opinions, 
> and argued instead for a rule allowing recess appointments during
any
> remission or suspension of Senate business, however short. See 
> Defendants' Motion for Summary Judgment on Count II of the Amended 
> Complaint at 14, 16, Mackie v. Clinton, 827 F. Supp. 56 (D.D.C.
1993)
> (No. 93-0032). The Government has reasserted that same argument [in

> cases challenging Bill Pryor's recess appointment].
>   In accord with that groundbreaking constitutional interpretation, 
> Executive appointment practice has changed dramatically over the
past
> two decades. Before 1982, Presidents virtually never made 
> intra-session recess appointments during Senate adjournments of 
> shorter than one month. But since 1982, there have been 66 such 
> appointments - 15 made by President Reagan, five by the first 
> President Bush, 14 by President Clinton, and 32 by the current 
> President [this was as of October 2004].  Before the final day of 
> President Clinton's first Term, no President had ever made an 
> intra-session recess appointment during a Senate break of fewer
than
> 13 days. But President Clinton made eight appointments in recesses 
> lasting from nine to eleven days; and President Bush has made 21 
> unilateral appointments during 10-day (i.e., one-business-week) 
> adjournments in the past eight months alone [preceding 10/04]. 
> Perhaps most alarmingly, of the 60 occasions in our history on
which
> a President has made an intra-session recess appointment fewer than

> nine days before the Senate's return, 59 of those appointments (all

> save one appointment in 1928) have been made since 1982 - and each
of
> those 59 appointments has been made within six days of the Senate's

> return.
>
>
>
>   ----- Original Message -----
>   From: Douglas Laycock
>   To: conlawprof at lists.ucla.edu
>   Sent: Friday, April 06, 2007 8:11 PM
>   Subject: RE: Speaking of arrogation of power
>
>
>   I confess to posting based on an impression that Bush is making
more
> recess appointments and during shorter recesses than in the past,
and
> without having checked investigated the facts.  I had forgotten
about
> Hormel, and Bill Lan Lee, and it appears that there are a lot of 
> recess appointments that don't get much press coverage.  The link 
> below, citing a list member and two other law professors as
sources,
> claims that Clinton averaged 9 recess appointments a year, Bush Sr.

> 20 a year, and Reagan 30 a year.  I had no idea.  And I don't know 
> what the current Bush's numbers are.
>
>   http://slate.msn.com/id/1002994/[1]
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

Links:
------
[1] /horde/services/go.php?url=http%3A%2F%2Fslate.msn.com%2Fid%2F1002994%2F

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