The Corner

Cordray’s Appointment Is Unconstitutional

On the homepage, I argue for a return to the original understanding of the recess-appointment power. Here’s a taste:

In Article II, Section 2, it says the “President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Under current practice, the president treats the word “happen” as if it means “exist,” — that is, he makes appointments to offices that are vacant during the recess, whether or not those vacancies occurred before the recess.

This interpretation flouts the original understanding. Try this example: On April 2, 1792, Congress passed a law establishing the national mint, but Pres. George Washington failed to nominate a candidate for chief coiner before the Senate adjourned on May 8. Washington then asked his attorney general, Edmund Randolph, whether he could make a recess appointment. On July 7, Randolph replied in a written opinion that Washington could not make an appointment because “it is now the same . . . vacancy . . . [that] existed on the 2nd of April 1792.” The vacancy did not “happen” while the Senate was in recess; “it commenced . . . on that day” of enactment.

Read more here.

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