Chicago Boyz

                 
 
 
 
What Are Chicago Boyz Readers Reading?
 

Recommended Photo Store
 
Buy Through Our Amazon Link or Banner to Support This Blog
 
 
 
  •   Enter your email to be notified of new posts:
    Email *
  •   Problem? Question?
  •   Contact Authors:

  • CB Twitter Feed
  • Lex's Tweets
  • Jonathan's Tweets
  • Blog Posts (RSS 2.0)
  • Blog Posts (Atom 0.3)
  • Incoming Links
  • Recent Comments

    • Loading...
  • Authors

  • Notable Discussions

  • Recent Posts

  • Blogroll

  • Categories

  • Archives

  • Seth Barrett Tillman: Moving the Overton Window and Student Notes

    Posted by Jonathan on January 6th, 2017 (All posts by )

    When you launch a new idea, its very newness puts it outside of the mainstream. Back in 2007, in an academic article, recess appointments were one of the issues du jour. I wrote that if a President made a recess appointment, a determined Senate could kill the appointment by ending its current session and immediately starting a new one (or by doing so twice, in the case of an intra-session recess appointment). See Seth Barrett Tillman, Senate Termination of Presidential Recess Appointments, 101 Nw. U. L. Rev. Colloquy 82 (2007), https://ssrn.com/abstract=956164 (the first part of a four-part Tillman-Kalt exchange).
     
    I admit that the idea was a bit novel—but it does follow from the text of the Constitution’s Recess Appointments Clause. One student note called my “innovation[] … at once both plausible and absurd ….” David Frisof, Note, Plausible Absurdities and Practical Formalities: The Recess Appointments Clause in Theory and Practice, 112 Mich. L. Rev. 627, 643 (2014).
     
    Two years later, in 2016, what was absurd is now standard fare.
     

    All that the [Republican majority] Senate would need to do [to terminate a purported recess appointment by President Obama of Judge Garland to the Supreme Court] is end its next session by adjourning sine die and Garland’s term would end. This is because, under the Constitution’s Recess Appointments Clause, such appointments terminate at the end of the next Senate session. Adjourning sine die would require the cooperation of the House and a president’s signature, but that would be no obstacle come Jan. 20. In other words, Congress could terminate any recess appointment made by Obama in less than three weeks.

    Read the rest.

     

    2 Responses to “Seth Barrett Tillman: Moving the Overton Window and Student Notes

    1. Assistant Village Idiot Says:

      This has a live-by-the-sword quality, but I don’t think that is entirely negative. Republicans have had an attitude of not trying to push the limits because it could come back to haunt them in another administration. That’s not crazy, but i don’t think it has worked.

      I have not been a Trump supporter, but I have been grateful for his ability to call the bluff of his opponents. Try it.

    2. Anonymous Says:

      Agree. And make it known that is exactly what will happen.

      Death6