Recess appointments and the framers’ understanding of advice and consent

Here’s the abstract for Nicole Schwartzberg’s What Is A ‘Recess’? : Recess Appointments and the Framers’ Understanding of Advice and Consent, 28 Journal of Law and Politics 231 (2013):

Article II, Section 2, Clause 3 of the U.S. Constitution (commonly referred to as the “Recess Appointments Clause”) confers upon the President the “Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” President Obama’s January 2012 recess appointments, made while the Senate attempted to block the President from making any recess appointments over the holiday break by holding “pro forma” sessions, raised new questions about the scope of the President’s power to avoid Senate confirmation. Can the Senate successfully prevent the President from making a recess appointment by convening every three days for sessions, even when no business is actually conducted?

Although a growing literature has sought to address this question, surprisingly little attention has been paid to the Framers’ intent when they incorporated the Recess Appointments Clause into our Constitution, in part due to the absence of legislative history accompanying the provision. This Article argues that while there is little direct evidence of the Framers’ intent concerning the Recess Appointments Clause, attending to adjacent provisions of the Constitution that require the Senate’s advice and consent, such as the Appointments Clause and the Treaty Clause, sheds light on the scope of unilateral power the Framers intended the clause to confer on the Executive Branch.

Examining the history of the Appointments Clause reveals that the Framers modeled the Senate’s role after the practice of advice and consent that existed in the Commonwealth of Massachusetts under British rule prior to the federal Constitutional Convention. That model prized an active role for the Senate in restraining the Executive Branch, and interpreted the Senate’s failure to act on Executive proposals as a valid rejection of those measures. Similarly, the Treaty Clause contemplated that the Senate would serve as a firm check on the President’s power to sign multilateral agreements. The history of these adjacent constitutional provisions, this Article argues, provides compelling evidence that the recent use of “pro forma” sessions is a constitutional method in the contemporary separation of powers arsenal for the Senate to preserve its right to reject a president’s nominees.

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