Brian Kalt (Michigan State) has posted Keeping Recess Appointments in Their Place on SSRN. Here is the abstract:
This is a response to Seth Barrett's piece in Northwestern Law Review's Colloquy entitled Senate Termination of Presidential Recess Appointments. In that piece, Tillman argues that the Senate can terminate a presidential recess appointment by terminating its session. This brief response argues three main points:
(1) Tillman misreads the Constitution in asserting that the Senate has the ability to end a bicameral congressional session without the House of Representatives' concurrence.
(2) Tillman underestimates the power that the President has over Senate sessions and adjournments. Moreover, during any Tillman adjournment, the President could simply redo any recess appointment that is being terminated. There is precedent for such presidential action.
(3) If the Senate wishes to hem in the President's recess appointment power, it has other options besides this ineffectual and needlessly provocative one.
