intrasession recess appointment. the next one occurred in 1921, when the knox opinion was abandoned by attorney general harry dougherty, to allow president harding to make one during a 28 day adjournment. doughty incorrectly relied on a 19-5 senate committee opinion which vehemently criticized teddy road svelt's appointment of 160 officers of a constructive ves of a millisecond. i should explain that. because of knox's opinion in 19-1, the only thing roosevelt could do was do an intrasession recess appointment. he did that during the end of a special session in 1903 and the start of a the next session almost immediately there after. he did it at the bang of the gavel. and he appointed 160 officials in that instant, two of whom were quite controversial, which is why he did it. the committee that criticized that defined a recess as something real, not imaginary, something actual. the committee, of course, was not talking about intrasession recesses, which had been ruled unavailable just four years before, but dougherty

first, modern presidents have made hundreds of intrasession recess appointments. first, president george w. bush, for example, made 141 such appointments. second, the supreme court has never spoken on the issue, and a few lower courts that have considered this issue have not done a thorough constitutional analysis. so the questions on the table today are not encrusted with complex precedence. third, these appointments are almost certain to be taken to the supreme court. not only for the reasons you will hear in today's discussion but also because the policy stakes are very high. in the cordray case, the question is whether the consumer financial protection bureau won't be able to function if the director was not properly appointed. the same thing is true of the nlrb, if it doesn't have a quorum, three out of its five members. the policies of both agencies are opposed by groups who will certainly have the standing to contest the authority of the president to make these appointments. if they win those cases, the agencies may not be able to act and their inter im int

such as those the president took recently would go to the question of whether there any valid intrasession recess appointments. at the end of not persuaded that there is any such limitation, i think the arguments are quite powerful. and one reason that they're not is that the whole notion of session is very vague in the constitution. peter speaks about the fact that this says "the recess" as if there is one. but there can be many sessions within a single congress, as, indeed, the roosevelt appointments were not made between the first and second sessions, but between a special session. so there could be multiple recesses that are inter-session within a single congress. and the vagueness of that means that i don't see any particular reason why a recess, if the president has the power to make appointments during a recess, why the fact that the recess occurs within a session. now, here was one problem with that that i think olc has wrestled with over the years. what's the bottom limiting principle of that. because the house and senate often recess until the next morning. does that mean that pe

my conclusion about legal propriety of the president obama's proported intrasession recess appointments is straight forward and direct. the appointments were unconstitutional because there was no senate recess that is necessary for such actions. the president's unilateral determination that there was one did not make it so. the constitution vests in the senate the sole and unreviewable power to confirm or not to confirm a presidential nomination for principle officer of the united states. a decision to deny confirmation could be made for what may be perceived as a good reason, a bad reason, or not stated reason at all. the constitution also provides the senate with an unreviewable authority to determine the rules of its proceedings, which allows it to say whether it is a constitutional recess or not, thus affording it a means of protecting itself against improper presidential intrusions. the recess clause, which recognizes the use of temporary appointing power only on the contingency of a constitutional recess was not triggered in this instance because the senate determined that it was