USD Law Prof Michael Rappaport’s Recess Appointment Scholarship Featured in Article About Upcoming SCOTUS Case

Michael Rappaport, Hugh and Hazel Darling Foundation Professor of Law

San Diego (January 8, 2014) – In his article titled, “Forget the Framers,” Eric Posner of cites University of San Diego (USD) School of Law Professor Michael Rappaport’s recess appointment scholarship in anticipation for next week’s oral arguments before the U.S. Supreme Court in the case of National Labor Relations Board v. Noel Canning, A Division of the Noel Corp.

At issue in the case: (1) Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate; (2) whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess; and (3) whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.

In his 2005 UCLA Law Review article, “The Original Meaning of the Recess Appointments Clause,” Rappaport presented evidence that the founders understood the recess clause narrowly. He examined the recess appointments made by the first few presidents and found that nearly all of them involved vacancies that opened up during a recess between sessions of Congress, at least where the evidence is clear.

Posner’s article takes a different perspective stating that NLRB v. Canning involves an obscure provision of the Constitution, a clumsy appeals court opinion that upset the delicate balance of power between the other two branches, and the question of whether James Madison attempted to appoint Theodore Gaillard to a vacant judgeship on April 13, 1813.

“This last question matters to scholars who believe that the original meaning of the Constitution—rather than tradition and common sense—should determine the outcome. But the case illustrates once again the folly of this view,” said Posner.

Presidents of both parties have made recess appointments. At least 14 presidents have appointed more than 600 civilian officials (and many more military officials) during intersession breaks, and at least 35 presidents have made an uncounted number of recess appointments to fill vacancies that began before the recess. The Senate has acquiesced in nearly all these appointments; in a few cases, it fought back, and sometimes the branches compromised. The Supreme Court has never expressed a view on the matter.

According to Posner, the court can resolve this case by holding that President Obama has continued a practice of his predecessors, one that is consistent with the text of the Constitution. Yet a group of scholars, pundits, and politicians argue that the decades-long practice is unconstitutional because it violates the original understanding of the Constitution.

Read the full article on

About Michael Rappaport

Michael Rappaport is the Hugh and Hazel Darling Foundation Professor of Law and the director of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law, where he teaches and writes in the areas of administrative law, constitutional law, constitutional history and legislation. His principal areas of research are originalism, separation of powers, federalism, and supermajority rules.

About the University of San Diego School of Law

Recognized for the excellence of its faculty, curriculum and clinical programs, the University of San Diego (USD) School of Law enrolls approximately 900 Juris Doctor and graduate law students from throughout the United States and around the world. The law school is best known for its offerings in the areas of business and corporate law, constitutional law, intellectual property, international and comparative law, public interest law, and taxation.

USD School of Law is one of the 81 law schools elected to the Order of the Coif, a national honor society for law school graduates. The law school’s faculty is a strong group of outstanding scholars and teachers with national and international reputations and currently ranks 23rd worldwide in all-time faculty downloads on the Social Sciences Research Network (SSRN). The school is accredited by the American Bar Association and is a member of the Association of American Law Schools. Founded in 1954, the law school is part of the University of San Diego, a private, nonprofit, independent, Roman Catholic university chartered in 1949.


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