Donald Trump makes obscure constitutional law great again. It is easy to rattle off the provisions: the Foreign and Domestic Emoluments Clauses, Section 3 of the Fourteenth Amendment, and now the Adjournment Clause. Time and again, Trump does something that implicates one of these seldom-litigated provisions, and almost immediately, people on both sides of the issue, who have never written about the clause before, become experts.
But rest assured, there is one person who wrote about these issues before anyone cared: Seth Barrett Tillman. And what makes Seth's scholarship so important, is that he addressed these issues outside the context of the current controversy. He argued that the President was not subject to the Foreign Emoluments Clause before a President Trump was even a remote possibility. Most scholars and advocates made up their minds on this issue with full knowledge of how it would affect Trump's case. It should count for something when a scholar has already written on a subject, and has done so behind the Rawlsian veil of ignorance.
Nearly two decades ago, Seth wrote about the interaction between the Recess Appointments Clause, the Adjournment Clause, and the Convening Clause. Seth had a four-part exchange with Professor Brian Kalt (another gem of the legal academy) in the Northwestern Law Review Colloquy (now Northwestern Law Review Online) on recess appointments. This exchange occurred several years before Noel Canning.
In the first installment, Seth explains that the Senate could terminate a recess appointment simply by terminating its session. Seth lays out the mechanics:
I suggest that, after the President makes a valid recess appointment, the Senate could convene, immediately terminate its session, and then reconvene instantly.
Even if the President were to adjourn Congress and make a recess appointment, the Senate could terminate its session and terminate that recess appointment. Last week, I flagged the issue of whether a presidential adjournment creates an intrasession recess or an intersession recess. I still don't know the answer. But Seth (of course) addressed both possibilities, and did so without the benefit of Noel Canning:
This strategy will only work for an intersession recess appointment. An intrasession recess appointment, i.e., an appointment made during an adjournment within a given session, lasts the remainder of that session and additionally for the life of the next session. Thus, if the President has made an intrasession recess appointment, then the Senate will have to convene and terminate two "sessions" back-to-back in order to terminate the President's intrasession appointment.
I'm not sure I saw anyone making this point about terminating recess appointments in the recent debates over the Adjournment Clause. So much for a dictatorial power that could not be checked.
In the second installment, Brian Kalt raises some problems with the "Tillman adjournment" He argues that the Senate cannot unilaterally adjourn a session. Rather, Kalt writes, "The Constitution provides, and uniform historical practice confirms, that a regular session ends when the Senate and House agree that it ends." And if they cannot agree, the President has the power to adjourn Congress.
Tillman replied in the third installment. He directly addressed the President's power to convene Congress:
Moreover, although Kalt states that the President has an "unquestioned power to convene (and reconvene, and re-reconvene) the Senate," the Constitution's text expressly limits this power to "extraordinary Occasions." Does Kalt seriously contend that a mere interbranch dispute over a mundane recess appointment is an "extraordinary Occasion"? Even after the Senate has rejected the appointment by going into recess and reconvening? . . .
Is Article II, Section 3, which states that the President "may convene both Houses, or either of them," counter-authority? Kalt seems to read this as an exclusive power of the President. I suggest the opposite: our sys-tem of separation of powers rejected executive prerogative over the legisla-tive houses. For the President to have any authority over legislative proceedings, an express grant was necessary. Such grants, standing alone, do not oust the houses of control over their own proceedings, including the timing of their sessions.
Much of the recent debates focused on the President's power to adjourn Congress. But the President also has the power to convene Congress. And it is argued that and supported by some authorities that doing so creates a new session. Based on the controversial Theodore Roosevelt precedent, the President could then make recess appointments in the infinitesimal intersession recess between the old session and the new one that is convened.
Kalt has the final word in the fourth installment.
Tillman also tries to make hay of the confusion surrounding the definitions of a "session," "recess," and "adjournment." To my textual evidence against a unilateral power of the Senate to terminate a regular session, Tillman retorts that my clauses mention adjournments, not Senate recesses or sessions. He follows this with an attempt to distinguish adjournments from recesses, citing Jefferson's Manual and a note on Australian practice. But the only relevant question for terminating recess appointments is what constitutes a session. Tillman's own go-to source, Jefferson's Manual, asks of Congress, "What then constitutes a session with them?" Jefferson's answer is similar to mine. Sessions begin by direction of either the Constitution, by law, or by the President. They can end either by the beginning of one of these new sessions, "by the efflux of their time" (i.e., the expiration of the term), or by an adjournment by "joint vote" of the two chambers. [FN15]
FN15: Jefferson does not mention the possibility of the President adjourning Congress in the case of a disagreement between the chambers, but Article II, Section 3 makes clear that this is the alternative to a "joint vote."
I appreciate this thoughtful exchange because it was made nearly two decades ago, when the consequences of the theories remained unknowable.
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