Academic round-up: Wrestling with recess appointments
on May 9, 2013 at 11:28 am
Although most petitioners face long odds of convincing the Court to grant review, there are exceptions. The Solicitor General’s petition seeking review of the D.C. Circuit’s decision restricting the President’s recess appointments power is one of those rare cases that is very likely to end up on the Court’s docket. The conventional wisdom is that the Court will agree to hear National Labor Relations Board v. Noel Canning to resolve the circuit split on the question and settle the status of a significant number of presidential recess appointees who are now in office. For readers wanting to get up to speed on recess appointments in anticipation of the likely cert. grant, I recommend several articles with divergent views on these questions.
Those interested in the case should start by reading Edward Hartnett’s 2005 article in the Cardozo Law Review, which asks the same two questions posed in the Solicitor General’s cert. petition: First, may a recess appointment be made if the vacancy existed prior to the recess? And second, may a recess appointment be made during a recess in the midst of a Senate session? Hartnett answers “yes” to both questions, and at least partly for that reason his article is cited in the Solicitor General’s cert. petition. Michael Rappaport takes the opposing view in his article The Original Meaning of the Recess Appointments Clause, which (as the title suggests) focuses on the original understanding of the Clause. And Michael Herz, in an article reacting to both Rappaport and Hartnett, proposes taking a purposivist approach to the Recess Appointments Clause, although he acknowledges that the Clause has come unmoored from its original purpose as a means to fill vacancies during long recesses necessitated by the hardships of eighteenth-century travel.
Readers looking for shorter, and more recent, commentary can turn to the 2013 Harvard Law Review Forum, in which Professors Peter Strauss, Cass Sunstein, and Adrian Vermeule take up the constitutional debate in the wake of the Canning decision.
Finally, for those seeking an overview of the events leading up to Canning, I recommend Taking Back What’s Theirs: The Recess Appointments Clause, Pro Forma Sessions, and a Political Tug-of-War, which includes a discussion of that litigation.