Keep Calm About The Adjournment Clause and Read Tillman
Donald Trump makes obscure constitutional law great again. It is easy to rattle off the provisions: the Foreign and Domestic Emoluments Clauses, Section 3 of the Fourteenth Amendment, and now the Adjournment Clause. Time and again, Trump does something that implicates one of these seldom-litigated provisions, and almost immediately, people on both sides of the issue, who have never written about the clause before, become experts.
But rest assured, there is one person who wrote about these issues before anyone cared: Seth Barrett Tillman. And what makes Seth’s scholarship so important, is that he addressed these issues outside the context of the current controversy. He argued that the President was not subject to the Foreign Emoluments Clause before a President Trump was even a remote possibility. Most scholars and advocates made up their minds on this issue with full knowledge of how it would affect Trump’s case. It should count for something when a scholar has already written on a subject, and has done so behind the Rawlsian veil of ignorance.
Nearly two decades ago, Seth wrote about the interaction between the Recess Appointments Clause, the Adjournment Clause, and the Convening Clause. Seth had a four-part exchange with Professor Brian Kalt (another gem of the legal academy) in the Northwestern Law Review Colloquy (now Northwestern Law Review Online) on recess appointments. This exchange occurred several years before Noel Canning.
In the first installment, Seth explains that the Senate could terminate a recess appointment simply by terminating its session. Seth lays out the mechanics:
I suggest that, after the President makes a valid recess appointment, the Senate could convene, immediately terminate its session, and then reconvene instantly.
Even if the President were to adjourn Congress and make a recess appointment, the Senate could terminate its session and terminate that
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