December 07, 2006

Most Recess Appointments are Unconstitutional

John Bolton's resignation as US Ambassador to the United Nations in the face of near certain failure of the Senate to confirm him has yet again brought to public attention the power of the President to make recess appointments. The received view is that the President may make an appointment without Senate confirmation whenever a position is vacant and the Senate is not in session. Such an appointment expires at the end of the next session of the Senate. I happened to be reading the US Constitution and something caught my eye. The power to make recess appointments derives from Article II, Section 2, Clause 3:

The President shall have 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.

As I read it, this permits the President to make recess appointments only when a position falls vacant while the Senate is in recess, not when a position falls vacant while the Senate is in session and the vacancy persists into a recess. This is because the verb "happen" has only a punctual reading. A vacancy "happens" when the previous occupant of the position dies, resigns, or is removed from office, or when a new position is created. It does not continue to happen. Although I am a native speaker, I am not a specialist in English, so I consulted my colleague Geoff Pullum, co-author of the Cambridge Grammar of the English Language, who reports that he agrees with me. On this interpretation, most recent recess appointments, including those of John Bolton and of judges William Pryor and John Pickering were ultra vires.

A bit of research using Google turned up a recent paper by Michael B. Rappaport of the University of San Diego School of Law entitled The Original Meaning of the Recess Appointments Clause, which makes the same point. Rappaport also argues that the clause is only intended to apply during intersession recesses, not during shorter recesses. If the plain meaning of the clause renders most recess appointments unconstitutional, why has this illegal practice been permitted to continue for so long and, apparently, without much controversy?

Addendum: Reader Steve Carlson points to another recent discussion of this issue, a paper entitled Recess Appointments of Article III Judges: Three Constitutional Questions by Edward A. Hartnett of Seton Hall Law School.

Posted by Bill Poser at December 7, 2006 03:56 PM