Senate Termination of Presidential Recess Appointments
I argue that as a simple straight forward textual matter the Senate majority can terminate a presidential recess appointment by terminating their session, i.e., the session that meets following a presidential intersession recess appointment. If the president makes an intrasession recess appointment (assuming such things have any constitutional validity at all), the Senate can terminate that appointment too - by terminating the current session, immediately reassembling, and then terminating the new session!
I do not argue that American history or the Constitution's structure support this position, nor do I feel inclined to do so, where as here, the text is reasonably clear. I do, however, marshal some policy arguments to support the textual argument, although I frankly acknowledge that these arguments should not control the meaning of a constitutional clause.
My opening article appears at: Tillman, Senate Termination of Presidential Recess Appointments, 101 Nw. U. L. Rev. Colloquy 82. Professor Brian C. Kalt has drafted an interesting and thoughtful response to my proposed procedural innovation. His response appears at: Kalt, Keeping Recess Appointments in Their Place, 101 Nw. U. L. Rev. Colloquy 88. My Reply to his response appears at: Tillman, Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt, 101 Nw. U. L. Rev. Colloquy 94. And finally, Professor Brian C. Kalt has posted: Keeping Tillman Adjournments in Their Place: A Rejoinder to Seth Barrett Tillman, 101 Nw. U. L. REV. Colloquy 108. This 4-part exchange was originally published on Colloquy over January-February 2007. The exchange was republished on Colloquy in January 2009, and republished on PublicSquare.net.
The four articles also appear on SSRN at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=956164 ; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=959051 ; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=962100 ; and http://papers.ssrn.com/sol3/papers.cfm?abstract_id=962762.
See also PublicSquare.net: Common Ground, Uncommon Debate, http://tinyurl.com/2as4jr, http://tinyurl.com/3e3em2, http://tinyurl.com/2o99b3, http://tinyurl.com/2e3o78 (last visited July 22, 2007) (reproducing four-part Tillman-Kalt exchange).
See also 103 NW. U. L. REV. COLLOQUY 286 (2009), http://tinyurl.com/8bwjph; 103 NW. U. L. REV. COLLOQUY 292 (2009), http://tinyurl.com/8osj45; 103 NW. U. L. REV. COLLOQUY 298 (2009), http://tinyurl.com/7vvh7r; 103 NW. U. L. REV. COLLOQUY 305 (2009), http://tinyurl.com/7r7cap.
Colloquy relinked to the four-part exchange on January 16, 2012.
[January 31, 2012]
Seth Barrett Tillman, Senate Termination of Presidential Recess Appointments, 101 Nw. U. L. Rev. Colloquy 82 (2007), http://www.law.northwestern.edu/lawreview/colloquy/2007/2/, available at http://works.bepress.com/seth_barrett_tillman/7/, also appearing on Publicsquare.net, http://tinyurl.com/2as4jr, also available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=956164, republished in 103 Nw. U. L. Rev. Colloquy 286 (2009), http://tinyurl.com/8bwjph, relinked http://tinyurl.com/87zcabz.
103 Nw U L Rev Colloquy 286