I know that interest in Recess Appointments has waned since the Supreme Court decided the Noel Canning case last year, but I have been brought back to the subject, since I have been doing the final edits on an article I wrote last year (that was cited several times by Justice Scalia’s concurrence). The article – Why Nonoriginalism Does Not Justify Departing from the Original Meaning of the Recess Appointments Clause – focuses on the practice of recess appointments over the 225 years since the enactment of the Constitution.
Unfortunately, Justice Breyer’s opinion for the majority has, for now at least, misinterpreted the Recess Appointments Clause. But one feature that the article discusses is of continuing relevance. In 1940, Congress passed a statute, codified at 5 U.S.C. 5503, which restricts payment of salaries to recess appointees when the vacancy that they fill existed while the Senate was in session. The statute then permits three limited exceptions to the prohibition on payment.
Depending on how one interprets the statute, the statute could have had a significant role in limiting the President’s recess appointment power. As with all things involving the recess appointments issue, the Executive Branch has been exceedingly aggressive in interpreting the statute to favor its interests.