Debating the President's Recess Appointment Power

Recess appointments have long operated as a check against Senate obstruction. Eliminating that check would infringe on the separation of powers and create a more dysfunctional government.

January 9, 2014

In the Washington Legal Foundation's latest On the Merits publication, Senior Policy Advisor Sidney S. Rosdeitcher debates Stanford Law School's Michael W. McConnell on National Labor Relations Board v. Noel Canning, which the U.S. Supreme Court will hear on January 13.

At issue in Noel Canning is the scope of the president’s power under the Constitution’s “Recess Appointments Clause,” which allows the president to make temporary executive and judicial appointments during Senate recesses, without Senate confirmation.

"The D.C. Circuit incorrectly interpreted the Recess Appointments Clause as restricting a President’s recess appointment power to filling only those vacancies arising during an intersession recess," Rosdeitcher argues. "As the Government persuasively demonstrates, the text, long historical practice, judicial precedent and the purpose of the Recess Appointments Clause all show that the President has the authority to fill vacancies during both intrasession and intersession recesses, and regardless of whether the vacancy first arose during the recess."
 
Read the entire exchange here.