Taking a break from constitutional authority? : toward a relational understanding of recess appointments

Abstract

This paper re-contextualize legal debates about recess appointments by considering how a relational approach might provide a better way to resolve these controversies. According to this relational reconceptualization, legalist, or constitutionally settled, understandings of recess appointments might entrench certain constitutional pathologies -- namely, partisan-motivated Congressional intransigence, or unencumbered presidential circumvention of Congress -- while offering little recourse to the branch that loses the legal argument. Through this re-contextualization the paper considers how constitutional authority can be developed as the branches engage each other responsively at the level of constitutional politics. To do this, the paper examines the institutional tools and capacities each branch has at its disposal to engage the other. Then, moving from phenomenon to theory, the paper presents a set of criteria by which political actors and citizens can evaluate recess appointments and congressional responses to them.