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Boston University School of Law




The so-called Recess Appointments Clause of the Constitution provides that: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”1 As of only a few years ago, I considered this clause so minor and quirky that I included it in a book about ten of the Constitution’s “oddest” clauses, right alongside such clearly weird provisions as the Title of Nobility Clause and the Third Amendment.2 Though I recognized that the Recess Appointments Clause was probably the least odd of all the clauses in the book in the sense that it has in fact played an important role over the course of the nation’s history, I still felt that it had received such little attention in the courts and among commentators that it would hardly be unreasonable to include it. After all, at the time, I could only find three law review articles that were devoted to discussing its history and meaning.3 The Recess Appointments Clause has become a lot less obscure, however, since January 2013, when the D.C. Circuit invalidated President Obama’s recess appointments to the National Labor Relations Board (NLRB) in Noel Canning v. NLRB (and, by implication, his more controversial appointment of Richard Cordray to the Director of the Consumer Financial Protection Bureau).4 In the wake of the D.C. Circuit’s decision in Canning, still at this writing awaiting a decision by the Supreme Court, nearly every constitutional law scholar in the United States has written an article about the clause.5

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