Recess Appointments

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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1 Response

  1. DS says:

    I followed this until the end. Where did the Senate assert that the reason it was engaging in these pro forma sessions was to avert going to into Recess and allowing recess appointments?

    I know the Senate minority believed this, but as the minority faction they do not speak for the Senate as an institution. Raines v. Byrd, 521 U.S. 811, 824 (1997). And I know members of the House believed this, but they’re members of the House, not the Senate. And I know that when the Senate did this during the Bush administration Harry Reid specifically announced he was doing it to block recess appointments, but I know of no similar announcement by him this time around (indeed, Reid publicly supported Obama’s recess appointments).

    My understanding was that the Senate went into pro forma sessions because the House refused to adjourn and thus the Senate was constitutionally forbidden from adjourning for more than three days. Certainly, it’s clear that the House’s motivation for this gambit was because it believed it would block recess appointees, but that doesn’t demonstrate what the Senate’s understanding was.

    Still, I feel like there’s part of this story that I’m missing, since most folks I’ve read who argue that the Senate’s view should control agree that it means the recess appointments were invalid.