In the brief remarks following, I do not address the Burkean argument that practice has established the permissibility of recess appointments during the week-or-more adjournments of Congress that modern transportation modalities permit. We can perhaps let President Eisenhower’s recess appointments of Chief Justice Warren, Justice Brennan, and Justice Stewart stand witness to that understanding. Rather, I want to suggest flaws in the originalist analysis used by the Canning court and in the Senate’s ruse of meeting every three days over the winter period of 2011-12 that many take to place the January 4, 2012 recess appointments President Obama made to the NLRB and to the Consumer Financial Protection Bureau outside that practice.
This brief contribution to the Harvard Law Review Forum explores historical realities unexamined by the Canning court, as well as Congress's consistent practices under the 20th Amendment to the Constitution and that amendment's text to argue that the Second Session of the 112th Congress was necessarily in recess – "the" recess if one wishes – from January 3, 2012 until mid-January, when it first actually assembled. A resolution of the First Session, not being the "law" the 20th Amendment requires validly to postpone the assembly of the Congress cannot affect that proposition, and hence the January 4 Recess Appointment President Obama made comfortably fit established historical traditions of intersession recess appointments regularly made since early in the 19th Century.
Peter L. Strauss,
The Pre-Session Recess,
Harvard Law Review Forum, Vol. 126, p. 130, 2013; Columbia Public Law Research Paper No. 13-345
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1802