Eight years on, the Supreme Court's revival of the president's removal power in Free Enterprise Fund v. PCAOB offers important lessons for originalism.
While I have blogged about this matter elsewhere on the Originalism Blog, I thought I would present my views on the issue on the Liberty Law Blog.
In 2005, I wrote a long article investigating the original meaning of the Recess Appointments Clause. It turns out that the power of the President to make recess appointments is much narrower under the original meaning than it is under current practice.
The original meaning of the Recess Appointments Clause allows Presidents to make recess appointments, but only when
(1) the vacancy arose during a recess
(2) the appointment is made during that same recess, and
(3) that recess is an intersession recess rather than an intrasession recess
(An intersession recess is a recess between two Senate sessions. An intrasession recess is a recess during a Senate session. In my view, the Constitution’s use of the term recess is restricted to intersession recesses. When the Constitution wants to refer more broadly to both intersession and intrasession recesses, it speaks of adjournments.)
This interpretation makes perfect sense of the evident purpose of the Clause. The President ordinarily appoints officers with the advice and consent of the Senate. During a recess, the Senate is not around and so the President needs to be able to make temporary or recess appointments to get the executive work done. The goal, however, is also to prevent the President’s ability to make temporary appointments from swallowing the rule requiring Senatorial advice and consent for appointments.
The original meaning serves these purposes well. It allows the President make a temporary appointment when vacancy arises during a recess and the appointment is made during that same recess. If the Senate is not around – and in the old days, the Senate might be out of session for 6 – 9 months – then the President can fill the office. Moreover, restricting recess appointments to intersession recesses also makes sense, because it was only the intersession recesses that were long; intrasession recesses were quite short.
By contrast, under modern interpretations of the Clause, the President can make a recess appointment during a recess, irrespective of when the vacancy arose. That means that the President can nominate someone and send his name to the Senate for confirmation. Then, if the Senate chooses not to act on the nomination during the session, the President can simply wait for a recess, and then recess appoint the person. This is clearly problematic. This does not allow the President to make recess appointments when the Senate’s recess prevents it from acting on a nomination. Instead, it allows the President to circumvent the senatorial advice and consent function.
Moreover, the modern interpretation of the Clause also treats intrasession recesses, which are both more common and typically shorter than intersession recesses, as allowing recess appointments. This gives the President more opportunities to circumvent the Senate.
In future posts, I hope to address the validity of President Obama’s recent recess appointments under modern practice and the possibility that the Supreme Court might return to the original meaning.