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Cass R. Sunstein, Originalism v. Burkeanism: A Dialogue over Recess, 126 Harv. L. Rev. F. 126 (2013).

Abstract: According to Article II, Section 2, Clause 3 of the U.S. Constitution (sometimes referred to as the “Recess Appointments Clause”), “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.” This past January, the D.C. Circuit held in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), that the President’s recess appointment power extends only to recesses between sessions of the Senate — not within a single session — and only to positions that become vacant during such intersession recesses.