In that circumstance, a recess appointment to the Court would not be within the terms of the Constitution, as spelled out in Article II. The bottom line is that, if President Obama is to successfully name a new Supreme Court Justice, he will have to run the gauntlet of the Republican-controlled Senate, and prevail there. The only real chance of that: if he picks a nominee so universally admired that it would be too embarrassing for the Senate not to respond.
Specifically, did Austin, Texas, violate the free-speech rights of advertising companies when it regulated "off-premises" business signs more strictly than "on-premises" signs? AHoweBlogger explains:. In , the Supreme Court unanimously agreed that an Arizona town could not impose different restrictions on the One case challenges Congress' exclusion of Puerto Rico from a federal safety-net program. The other involves the right of death-row prisoners to receive spiritual guidance in their final moments.
Two cases today: a lawsuit against the FBI for surveilling Muslim Americans, and a technical copyright dispute. But some justices seemed reluctant to wade into broader questions about the right to carry guns in public.
AHoweBlogger's full analysis:. This article was updated on Nov. Is a recess appointment to the Court an option?
In First Amendment challenge to city billboard rules, justices will be sign language interpreters - SCOTUSblog In , the Supreme Court unanimously agreed that an Arizona town could not impose different restrictions on the Reply on Twitter Retweet on Twitter 26 Like on Twitter 64 View on Twitter Reply on Twitter Retweet on Twitter 80 Like on Twitter View on Twitter Reply on Twitter Retweet on Twitter 16 Like on Twitter 35 View on Twitter Reply on Twitter Retweet on Twitter 49 Like on Twitter View on Twitter In recent decades, Congress has typically had intrasession recesses of more than three days, usually in conjunction with national holidays.
In recent decades, each Congress has consisted of two month sessions separated by an intersession recess. The period between the second session of one Congress and the first session of the following Congress is also an intersession recess. Recent Presidents have made both intersession and intrasession recess appointments.
Intrasession recess appointments were unusual, however, prior to the s, in part because intrasession recesses were less common at that time. Intrasession recess appointments have sometimes provoked controversy in the Senate, and some academic literature also has called their legitimacy into question.
Notwithstanding the legal opinions and practices of the preceding decades, a Department of Justice legal opinion and two federal appeals court decisions related to four controversial recess appointments made by President Barack Obama on January 4, , raised questions about what a "recess" is with regard to the recess appointment power.
Supreme Court addressed these questions. It held that the President's recess appointment power extends to both intersession and intrasession recesses. The Court also held that the President may use the recess appointment power essentially only during a recess of 10 days or longer. A Senate recess of 3 days "is not long enough to trigger the President's recess appointment power," and a recess of more than 3 days but less than 10 is "presumptively too short to fall within the Clause" but "leaves open the possibility that a very unusual circumstance could demand the exercise of the recess-appointment power during a shorter break.
Furthermore, the Court concluded that, for purposes of the Recess Appointments Clause, "the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business. Under the Adjournments Clause of the Constitution, however, such a determination requires the consent of the House. The Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment.
Over time, the Department of Justice, through opinions of Attorneys General and the Office of Legal Counsel, has expressed differing views on this question. Prior to , no settled understanding appeared to exist. As noted above, however, in a June 26, , opinion, the U. Supreme Court held that the President's recess appointment power extends to both intersession and intrasession recesses, but that essentially the recess must be 10 days or longer in duration. This determination appears to be consistent with predominant recess appointment practice in recent decades.
Between the beginning of the Reagan presidency in January and the end of December , it appears that the shortest intersession recess during which a President made a recess appointment was 11 days, 21 and the shortest intrasession recess during which a President made a recess appointment was 10 days.
Historically, questions have arisen about the meaning of the constitutional phrase "Vacancies that may happen during the Recess of the Senate. The first interpretation would allow the President to make recess appointments to any position that became vacant prior to the recess and continued to be vacant during the recess, as well as positions that became vacant during the recess. The second interpretation would allow recess appointments only to positions that became vacant during the recess.
Although this question was a source of controversy in the early 19 th century, Attorneys General and most courts, including, in , the U. Supreme Court, 23 have now supported the first, broader interpretation of the phrase. A second question regarding the meaning of "Vacancies" arises in connection with recess appointments to fixed-term positions, such as those often associated with regulatory boards and commissions.
In order to promote continuity of operations, Congress has often included "holdover" provisions in the statutory language creating such positions. The question then arises whether or not a position is vacant, for the purposes of a recess appointment, if an individual is continuing to serve, under a holdover provision, past the end of his or her term. The courts have varied in their rulings on this matter, and it has not been settled definitively by an appellate court.
Based on decisions to date, however, the answer appears to hinge on the specific language of the holdover provision. For example, if the language is mandatory the officeholder " shall continue to serve after the expiration of his term" , rather than permissive " may continue to serve" , the position has been seen by the courts as not vacant, and therefore not available for a recess appointment.
A recess appointment expires at the sine die adjournment of the Senate's "next session. Where he has made the appointment during an intrasession recess, however, the duration of the appointment has included the rest of the session in progress plus the full length of the session that followed.
At any point in a year, as a result, by making a recess appointment during an intrasession recess, a President could fill a position not just for the rest of that year, but until near the end of the following year. In practice, this has meant that a recess appointment could last for almost two years. A comparison of two recess appointments during the th Congress illustrates the difference in recess appointment duration that results from the timing of appointments.
During the recess between the first and second sessions, President George W. Bush appointed Charles W. Pickering to a federal court of appeals judgeship. Several weeks later, during the first recess of the second session, President Bush appointed William H. Pryor to a judgeship on another federal court of appeals. Pickering's appointment expired after less than 11 months, at the end of the second session.
In contrast, Pryor's recess appointment would have expired after approximately 22 months, at the end of the first session of the th Congress. The Constitution does not require that the President submit a nomination of a recess appointee or anyone else to the appointed position, though he may do so. Alternatively, the President sometimes will use a recess appointment to fill a position while a different nominee to the same position is going through the Senate confirmation process.
Under certain conditions, a provision of law may prevent a recess appointee from being paid from the Treasury if the President has not submitted a nomination to the position. A confirmed appointee and a recess appointee have the same legal authority and receive the same rate of pay.
However, two provisions of law may, under certain circumstances, prevent a recess appointee from being paid. There is no qualification on the President's "Power to fill up all Vacancies" in the constitutional provision. Neither is there a statutory constraint on this power. There are, however, several provisions of law that may prevent a recess appointee from being paid, and this could discourage the President from making a recess appointment under certain circumstances.
Under 5 U. Section a , if the position to which the President makes a recess appointment became vacant while the Senate was in session, the recess appointee may not be paid from the Treasury until he or she is confirmed by the Senate. The salary prohibition does not apply if 1 the vacancy arose within 30 days of the end of the session; 2 a nomination for the office other than the nomination of someone given a recess appointment during the preceding recess was pending when the Senate recessed; or 3 a nomination was rejected within 30 days of the end of the session and another individual was given the recess appointment.
A recess appointment falling under any one of these three exceptions must be followed by a nomination to the position not later than 40 days after the beginning of the next session of the Senate. In addition, although a recess appointee whose nomination to a full term is subsequently rejected by the Senate may continue to serve until the end of the recess appointment, a provision routinely included in an appropriations act may prevent him or her from being paid after the rejection.
Lastly, an individual serving under a recess appointment might not be paid for his or her services if he or she has been nominated to the position twice and the second nomination has been withdrawn or returned. Effective January 20, , and for each fiscal year thereafter, no part of any appropriation contained in this or any other Act may be used for the payment of services to any individual carrying out the responsibilities of any position requiring Senate advice and consent in an acting or temporary capacity after the second submission of a nomination for that individual to that position has been withdrawn or returned to the President.
Although this provision seems designed to prevent payment to persons who are serving in an acting capacity in accordance with the Vacancies Reform Act, a question may arise as to whether this prohibition could extend to recess appointees, given that they are arguably acting in a "temporary capacity. Rejection by the Senate does not end the recess appointment. However, a provision of the FY Financial Services and General Government Appropriations Act might prevent an appointee from being paid after his or her rejection.
The provision reads, "Hereafter, no part of any appropriation contained in this or any other Act shall be paid to any person for the filling of any position for which he or she has been nominated after the Senate has voted not to approve the nomination of said person. Noel Canning, U. Stephens, F. Woodley, F. Allocco, F. For prior executive branch interpretations of the Recess Appointments Clause, see 25 Op.
OLC ; 20 Op. OLC , ; 16 Op. OLC 15 ; 13 Op. OLC ; 6 Op. OLC , ; 3 Op. OLC , ; 41 Op. For the early practice on recess appointments, see G.
More specifically, the Court found nothing in dictionary definitions or common usage contemporaneous to the Constitution that would suggest that an intra-session recess was not a recess. I, sec.
Noel Canning , slip op.
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