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Analysis: Recess Appointments (Article II, Section 2, Clause 3)

[image] Article II heading from The Constitution [199x300]

In late 2010, comprehensive analysis of the presidential succession process was circulated, and it included analysis of the U.S. Constitution's Officer Assignment Process (i.e., U.S. Const., art. II, ยง2). Less than a year later, a number of lawsuits related to the analysis were filed that challenged the President of the United States' constitutional authority to use the so-called Recess Appointments Clause (art. II, § 2, cl. 3) during a so-called Senate "pro-forma" session. The Executive Branch attempted to [incorrectly] justify such recess appointments via a memo dated 06 January 2012, and authored by Ms. Virginia Seitz, Assistant AG at the Office of Legal Counsel (OLC), US Justice Department. On 03 February 2012, Ms. Seitz received a letter and the accompanied applicable Officer Assignment Process analysis explaining in detail that her analysis and legal argument on the subject matter were invalid. Ms. Seitz did not reverse her decision, and the U.S. Supreme Court (via National Labor Relations Board v. Noel Canning Doc#12-1281) ultimately ruled Ms. Seitz's legal argument was in fact invalid. Ms. Seitz stayed on as Assistant AG for OLC until roughly three weeks after the 03 February 2012 letter was publicly released, upon which she quitely resigned her position at the OLC. Refer to the section "Invalid Legal Argument by Office of Legal Counsel" below regarding Ms. Seitz's 06 January 2012 Memo and the subsequent 03 February 2012 letter with accompanied analysis.

Under Article II, Section 2 of the U.S. Constitution, all Officers of the United States must be either appointed to their office via the Appointments Clause (art. II, § 2, cl. 2) or commissioned temporarily to their office via the so-called Recess Appointments Clause (art. II, § 2, cl. 3). 

When the Senate is not available to fulfill its constitutional mandate under the Appointments Clause, the President has the option to employ the so-called Recess Appointments Clause.  But, only if the Senate is in recess, and an applicable vacancy exists. 

Of course, differing interpretations exist between the Legislative and Executive branches as to when the Senate is in recess and which vacancies can be filled by a so-called recess appointment, as well as misconceptions relative to the overall Article II, Section 2 Officer Assignment processes. 

As a result, analysis is required of all applicable sections of the Constitution to correctly ascertain when the two officer assignment processes can be used. 

An extensive analysis of the overall Section 2 Officer Assignment process was performed and documented in an essay on presidential successors (Presidential Successors—Entitled Successors, 01 October 2010), which also addresses exactly when a Section 2 Officer vacancy can be filled via the so-called Recess Appointments Clause (Art. II, § 2, cl. 3).

Senate Sessions and Recesses

Interpreting the Intent of Article II, Section 2 of the U.S. Constitution (additional material to be uploaded...last update date: 12/17/2013) :: remove notice when completed

The U.S. Supreme Court has accepted a case from the D.C. Circuit Court of Appeals, National Labor Relations Board v. Noel Canning ([non-local docs] Doc#12-1281) ([local docs] NLRB v. Noel Canning), in which certain so-called recess appointments during a pro-forma session of the U.S. Senate were legally challenged. The case is politically motivated as the Legislative and Executive branches dual over a common set of constitutional clauses regarding the overall officer assignment process as stipulated in the U.S. Constitution, with both branches of the Government involved in more ideology than logic, more grandstanding than statesmanship, and more ridiculousness than reason.

The case boils down to the following issues:

  • When the Senate is in recess, can all vacancies that exist be filled, or only those vacancies that occurred during the existing recess?
  • Does the so-called Recess Appointments Clause apply to all Senate recess periods, or only specific Senate recess periods (as in, intra-session and inter-session Senate recess periods)?
  • When is the Senate in recess? And more precisely, are so-called pro-forma sessions real sessions, or simply recesses masked as sessions?
  • Can the President of the United States "define" the actual Senate session status as "in-recess" for the purposes of invoking the so-called Recess Appointments Clause?

... the "Analysis and Conclusions" sections which follows is not finalized as yet.

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Analysis and Conclusions

Question 1:
When the Senate is in recess, can all vacancies that exist be filled, or only those vacancies that occurred during the existing recess?

Analysis: Article II, Section 2 Officer Assignment Processes (click to read analysis)
  • Answer:
  • If the Senate is in session, then Article II, Section 2, Clause 2 (Appointments Clause) is mandated; and
  • If the Senate is in recess and a vacancy shall then happen during said recess, then Article II, Section 2, Clause 3 (so-called Recess Appointments Clause) is permitted, although it is within the President's discretion not to use this alternative Section 2 Officer assignment process; and
  • If the Senate is in recess and a vacancy exists, but did not occur during said recess, then the Appointments Clause (art. II, § 2, cl. 2) is mandated once the Senate is back in session.

 

Question n:
Content for Questions 2 thru 5 is not uploaded as yet.

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Invalid Legal Argument by Office of Legal Counsel (OLC)

Regarding Memo to Executive Branch Authorizing Recess Appointments

On 06 January 2012, Ms. Virginia A. Seitz, as Assistant AG for the Office of Legal Counsel within the US Justice Department, sent a memorandum to the President of the United States entitled, "Lawfulness of Recess Appointments during a Recess of the Senate notwithstanding Periodic Pro Forma Sessions," which was clearly based upon an invalid interpretation and erred understanding of the so-called Recess Appointments Clause (i.e., art. II, § 2, cl. 3) of the Constitution.  On 03 February 2012, Ms. Seitz received a letter and accompanied analysis conclusively proving her aforementioned "Lawfulness..." memorandum was both invalid and erred.

Unfortunately, Ms. Seitz either decided to ignore the letter or she simply could not understand its contents, and as a result, a legal challenge via the U.S. Supreme Court was required to correct Ms. Seitz's erred memorandum.