Much misinformation about The Constitution is place out by those who seek to circumvent its clear provisions. In Peter Schroeder’s recent article in The Hill , he reports that David Arkush, director of Public Citizen’s Congress Watch division, makes two arguments which Arkush claims permit the President to make a “recess” appointment of someone (Richard Cordray) whose nomination has already been blocked by the Senate. Arkush reportedly claims that Art. 2, Sec.3, U.S. Constitution, allows the President to force the House and Senate to adjourn; and then, pursuant to Art. II, Sec. 2, last clause, he would be permitted to make a “recess” appointment of his rejected nominee. 1 Arkush’s next claim is this: The 20 th Amendment states that Congress shall assemble at least once a year, with each session beginning on Jan. 3. Arkush says that in order to be able to start a session on Jan 3 ; Congress would have to have stopped a previous session – and between the stopping of the ancient and the starting of the new, the President may slip in there and make a “recess” appointment of his rejected nominee! Rubbish. So! Let us see how simple it is to look things up in Our Constitution. You do not have to settle for the rubbish spewed by others and uncritically reported by journalists. You can find out for yourself what Our Constitution really says. Look It Up In Our Constitution! FIRST: What does Our Constitution say about presidential “appointments”? Article II, Sec. 2, cl. 2, says: “…he shall nominate , and by and with the Advice and Consent of the Senate , shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they reckon proper, in the President alone…” [emphasis added] Do you see? The constitutional scheme is that the President nominates – the Senate confirms or rejects the President’s nomination . This is the “check” which Our Constitution imposes on the President’s nominations. The purpose is to protect us from the loons, incompetents, or toadies whom various presidents have, from time to time, nominated. NOW let us see what Our Constitution says about recess appointments. Article II, Sec. 2, last clause, says: “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.” [emphasis added] Do you see? The Vacancy must have happened at a time when the Senate was already in Recess! So! The President may not properly circumvent the Senate’s constitutionally granted power to reject his nominations by means of cheap gimmicks such as forcing the Congress to adjourn, or by waiting until Congress is in recess, to “recess appoint” someone whom the Senate has already refused to approve! Check It Out In The Federalist Papers! The Federalist Papers are authoritative on the genuine meaning of Our Constitution, 2 so you always want to see what they say about any clause in Our Constitution. Here is an online edition of The Federalist Papers with a searchable text. If you type in “recess”, you will get hits for The Federalist Papers which use that term. Throughout Federalist No. 76 , Alexander Hamilton clarifies the reasons for the constitutional provision requiring nominations by the President to be submitted to the Senate for their approval or disapproval. In the last 3 paras, Hamilton points out that the Constitution “requires” the cooperation of the Senate in appointments in order to “check” the President and “to prevent the appointment of unfit characters”; and that “the necessity of its [the Senate’s] co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate [the President].” Now, let us see what The Federalist Papers say about “recess” appointments. In Federalist No. 67 (next to last para) Hamilton is very clear that Article II, Sec. 2, last clause, means what it says: “…The ordinary power of appointment is confined to the President and Senate JOINTLY, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen IN THEIR RECESS, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, SINGLY, to make temporary appointments “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”…” [caps are Hamilton’s] Do you see? Article II, Sec. 2, last clause, means exactly what it says. Before this clause even kicks in, the vacancy must have happened while the Senate was in “recess”.