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Invoking the Recess Appointments Clause--which gives the President the power "to fill up all Vacancies that may happen during the Recess of the Senate," Art. 3--the President appointed the three members in question between the January 3 and January 6 sessions. Circuit agreed that the appointments fell outside the scope of the Clause, but on different grounds. (a) Two background considerations are relevant to the questions here. The Congressional Research Service is "unaware of any official source of information tracking the dates of vacancies in federal offices." The Decision 3, n. Nonetheless, we have enough information to believe that the Presidents since Madison have made many recess appointments filling vacancies that initially occurred prior to a recess. Indeed, Senator Trumbull, who introduced the Pay Act, acknowledged that there was disagreement about the underlying constitutional question. Meanwhile, Presidents continued to make appointments to pre-recess vacancies. 1 (noting that President Hayes had made "quite a number of appointments" to pre-recess vacancies). The upshot is that the President has consistently and frequently interpreted the Recess Appointments Clause to apply to vacancies that initially occur before, but continue to exist during, a recess of the Senate. 16 (2012) (for nearly 200 years "the overwhelming mass of actual practice" supports the President's interpretation); , 279 U. And we are reluctant to upset this traditional practice where doing so would seriously shrink the authority that Presidents have believed existed and have exercised for so long. 2, which requires Senate approval of Presidential nominations, at least for principal officers. Common sense also suggests that many recess appointees filled vacancies that arose before the recess began. existed while the Senate was in session." Act of Feb. In the debate preceding the 1905 Senate Report regarding President Roosevelt's "constructive" recess appointments, Senator Tillman--who chaired the Committee that authored the 1905 Report--brought up the 1863 Report, and another Senator responded: "Whatever that report may have said in 1863, I do not think that has been the view the Senate has taken" of the issue. In 1916 the Senate debated whether to pay a recess appointee who had filled a pre-recess vacancy and had not subsequently been confirmed. We must determine the significance of these sessions--that is, whether, for purposes of the Clause, we should treat them as periods when the Senate was in session or as periods when it was in recess. It could terminate the recess and then, when in session, pass a bill. Senate rules make clear that, once in session, the Senate can act even if it has earlier said that it would not. The Senate's rules dictate that Senators are under a duty to attend every session. Nothing excused the Senators from this duty during the Senate's sessions. Department of Defense from the calculation of an individual debtor's disposable income used for bankruptcy means testing.
President Andrew Johnson made the first documented intra-session recess appointments in 18, and Presidents made similar appointments in 19. When the Senate is without the Senators that if the Senate had left the Capitol and "effectively given up . In that circumstance, the Senate is not simply unlikely or unwilling to act upon nominations of the President. This purpose would count for little were we to treat the Senate as though it were in session even when it lacks the ability to provide its "advice and consent." Art. Applying this standard, we find that the sessions were sessions for purposes of the Clause. The Journal of the Senate and the Congressional Record indicate that the Senate convened for a series of twice-weekly "sessions" from December 20 through January 20. It simply provides a subsidiary method for appointing officials when the Senate is away during a recess. That structure foresees resolution not only through judicial interpretation and compromise among the branches but also by the ballot box.
Their frequency suggests that the Senate and President have recognized that such appointments can be both necessary and appropriate in certain circumstances. (b) The phrasebreaks in the midst of a formal session) of substantial length. Founding-era dictionaries and usages show that the phrase "the recess" can encompass intra-session breaks. In 1814 Senator Gore said that if "the vacancy happen at another time, it is not the case described by the Constitution." 26 Annals of Cong. In 1822 a Senate committee, while focusing on the President's power to fill a new vacancy created by statute, used language to the same effect. And the Senate then passed the Pay Act, which provided that "no money shall be paid . The Constitution explicitly empowers the Senate to "determine the Rules of its Proceedings." Art. This suggests that the Senate's determination about what constitutes a session should merit great respect. As the Solicitor General concedes, the Senate could preclude the President from making recess appointments by holding a series of twice-a-week ) sessions.