Ryan D. Doerfler, Go Big or Go Home: The Constitutionality of Recess Appointments Following Pro Forma Sessions of the Senate, 65 Admin. L. Rev. 975 (2013).
Abstract: In Noel Canning v. NLRB, the D.C. Circuit held that the recess appointment power, which permits the President to "fill up all Vacancies that may happen during the Recess of the Senate," extends only to vacancies that arise during the recess between official sessions of the Senate. This Article advances two principal theses. The first is that the restrictions on the recess appointment power articulated in Noel Canning are compelled by the constitutional text. The second is that those restrictions are the only restrictions that the judiciary is in a position to enforce vis-à-vis the President's appointments. As to the first thesis, this Article argues that, because of the cursory nature of the linguistic analysis up to this point, most parties to the debate have become convinced (or perhaps better, have managed to convince themselves) that the text of the Recess Appointment Clause is ambiguous. It is not. First, the debate up until now has proceeded on the assumption that the term "happen" admits of two senses, such that something could be said to "happen" either when it arises or whenever it exists. This Article argues that one can make sense of the relevant linguistic data by attributing to "happen" a single sense, according to which something can be said to "happen" only during the entire period of time during which it exists. Second, critics of Noel Canning have argued that "the recess" as used in the Recess Appointments Clause is ambiguous insofar as it might refer either to some specific recess or to recesses as a kind. This Article suggests that, while it is possible to achieve kind-reference with a definite singular noun phrase, the preconditions for doing so are not met in the context of Article II, Section 2, Clause 3. As to the second thesis, this Article argues that the less sweeping objection levied against the President's appointments, that the period of adjournment during which they were issued was simply too brief to constitute a "recess," is difficult for a challenger to advance without contradiction, let alone for a court to accept and enforce.