Were the President’s Recess Appointments Constitutional?

Posted on Thursday, February 23, 2012 10:45:07 AM by Martin_Schmidt

Tuesday at AEI, four distinguished lawyers aggressively debated the constitutionality of the president’s recent “recess” appointments during the Senate’s 2011-2012 pro forma sessions. First, Morton Rosenberg asserted that the president was explicitly violating the Constitution by making recess appointments when the Senate was in pro forma sessions, thereby avoiding recess by its own constitutional authority to develop its own rules.

Douglas Kmiec countered that the Senate’s creation of pro forma sessions simply to inhibit the executive branch violated the honest interface that the framers intended between the branches of government. David Rivkin Jr. concurred with Rosenberg’s conclusion about the unconstitutionality of the appointments, also noting that the session could not have been pro forma at all, since the Congress did perform legislative tasks during the recess period, including passage of the payroll tax cut extension. Peter Wallison (AEI), who moderated the event, questioned whether the Senate could possibly protect itself from the president’s appointing officials without its consent, but the debate over the recess period continued to dominate the discussion among the panel members. Panelist Walter Dellinger said that from December 17, 2011, to January 23, 2012, the Senate was in session only when it met every third day for pro forma sessions; consequently, he sided with Kmiec in advocating that the administration was not wrong in its recess appointment.

(Excerpt) Read more at aei.org …

via Were the President’s Recess Appointments Constitutional?.

 

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