Recess appointments

Earlier this month, I discussed the extent to which Presidents can game 5 U.S.C. § 3345 et seq. in the waning days of their administration to avoid the need to make recess appointments. This was in response to a post by Kevin at "LeanLeft" suggesting that the Senate remain in session until the conclusion of this administration to forestall any further recess appointments by President Bush; according to the NYT today, the Senate leadership has reached the same conclusion as Kevin:

[F]earing that President Bush would again use a Congressional recess to install disputed executive branch appointees without Senate confirmation, Democrats convened the Senate for the first of four microsessions to be held during the holiday break, precisely to thwart such an end run. ... “This is the first time that pro forma[ sessions] have been used to block recess appointments,” said Jim Manley, a spokesman for [Senate Majority Leader Harry] Reid.

. . .

... Democrats appear dead set against allowing any more recess appointees, who would serve until the end of the next Congressional session — that is, essentially through the end of Mr. Bush’s term. So unless there is an agreement between the White House and Democrats, it appears likely the Senate will not be in formal recess any time through 2008.

I can't get too worked up about this because I'm skeptical about the Constitutional validity of modern recess appointment practice. I agree with Michael Rappaport who persuasively argued1 that the textual authorization for the President "to fill up all vacancies that may happen during the recess of the Senate, by granting commisions which shall expire at the end of the[] [Senate's] next session,"2 can't reasonably be read as permitting the President to fill up all vacancies extant when the Senate goes into recess. The clause can only be read as authorizing a President to fill a vacancy that arises after the Senate has gone into recess; the alternative reading would functionally do one of two things, neither of which are permissable: it would either substitute "exist" for "happen," or it would render "that may happen" surplussage (violating the canon of construction that says "don't do that"). This conclusion flows all-but inescapably from the text itself, and as Rappaport demonstrated, the door slams shut when structure, purpose and original meaning are factored in. As the NYT notes, the objection from "[t]he administration and Congressional Republicans ... [to] the Democratic tactic ... [is] that 190 nominations [a]re pending in the Senate," which is precisely the circumstance I don't think that the recess appointment can validly be used in. (I also agree with Rappaport that the original meaning of "recess" refers to intersession recesses, but I think the case for that is less solid and is in any event not implicated here.)

Added: Marty Lederman attacks it from the other angle - i.e., what kind of recess permits a recess appointment - here, but I still think that if one reads "vacancies that may happen during the recess" to authorize only the filling of vacancies that happen - "may happen" meaning "may arise" rather than "may exist" - then the question of how long a recess or what kind of a recess is good enough to warrant a recess appointment becomes irrelevant if (as here) the vacancy existed when the Senate entered its recess.

Post facto:
Pocket veto? (12/27/07)
Line of succession, redux (7/28/08)
Recess appointments with the boot on the other foot (2/10/10) (followed)

1. 1. See Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487 (2005).
2. 2. Art. II § 2 (emphasis added).