Free The Odd Clauses by Jay Wexler Page B

“occur,” then the president would not be able to fill a vacancy during a recess if the position had become vacant before the recess, no matter how long the recess was supposed to last. If the secretary of state, for instance, quit or died the day before a two-month break, the president would be stuck with running a government without a replacement until the Senate returned. But the whole point of the recess-appointment clause is to give the president the power to fill important positions when the Senate is not around to confirm them. It shouldn’t be surprising, then, that the federal appeals court in the Pryor case joined several other courts which have also held that “happen” basically means “exists” for purposes of the recess-appointments clause, even though that’s not the most natural reading of the word.
    The intrasession versus intersession issue is harder, in part because neither interpretation is clearly better given the purpose of the recess-appointments clause. Some have argued that because the main purpose of the clause is to allow the president to appoint officials unilaterally during long Senate absences, and because in the nation’s early years the Senate’s intersession recesses were much longer than its occasional intrasession breaks, therefore the clause should be read only to apply to intersession recesses. The problem, though, is that this length difference disappeared, to a large extent, after the Civil War. Indeed, in the twentieth century, we’ve had plenty of long intrasession breaks, including at least eight that lasted over a month in the last twenty years, not to mention a two-month Reagan-era break and one in 1948 that lasted over four months. Likewise, we’ve had some short intersession recesses, including at least one that lasted exactly zero seconds. In 1903, after a single gavel slam ended oneSenate session and began a new one, Teddy Roosevelt appointed 160 officers in what he described as the “constructive” split-second recess that must have existed between the two sessions, an action that the
New York Times
subsequently lambasted, in an editorial entitled “The Infinitesimal Recess,” as “preposterous.”
    What about the text of the clause—does it resolve the issue any better than the purpose? Not really. People who argue that the recess-appointments clause does not apply to intrasession breaks argue that the word “recess” refers to the main break taken during any activity; that the word “the” before “recess” shows that the framers envisioned that only a single recess counted for purposes of the clause; and that short intrasession breaks are referred to elsewhere in the Constitution as “adjournments” rather than “recesses.” On this last point, supporters of the intersession-recesses-only argument point to the adjournment clause of Article I, Section 5, which says that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.”
    Those on the intrasession-breaks-count-too side have answers for all of these arguments. They respond that “recess” means any short break (think of a judge telling a jury that there will be a “fifteen-minute recess”); that “the” can refer to a state or condition rather than a single occurrence (as one court put it, quoting a dictionary from 1965, the word “the” can be “used to mark a noun as being used generically” as in “
the dog is a quadruped
”); and that the Constitution makes no neat and clear distinction between “adjournments” and “recesses.” For this last point, the intrasession-breaks-count-too crowd likes to point to the pocket-veto clause of Article I, Section 7, which says that if the president fails to either sign or veto a bill within ten days, it becomes a law,