Donald Trump is bringing attention to obscure constitutional law once again. From the Foreign and Domestic Emoluments Clauses to the Adjournment Clause, Trump’s actions often involve these lesser-known provisions, prompting newfound expertise from individuals on both sides of the issue who had never delved into these clauses before.
However, one person had already tackled these issues long before they became mainstream: Seth Barrett Tillman. What sets Seth’s scholarship apart is his approach to these topics outside of the current controversies. He argued against the President being subject to the Foreign Emoluments Clause long before a President Trump was even a possibility. This preemptive analysis, done without the bias of current events, holds significant weight in scholarly discussions.
Nearly two decades ago, Seth engaged in a scholarly exchange with Professor Brian Kalt on recess appointments, the Adjournment Clause, and the Convening Clause in the Northwestern Law Review Colloquy. This exchange predated the landmark case of Noel Canning by several years.
In the first installment, Seth proposed a method for terminating a recess appointment by the Senate, shedding light on a little-discussed aspect of constitutional law. Even in recent debates over the Adjournment Clause, Seth’s insights on terminating recess appointments were notably absent.
Seth’s early analysis of the President’s power to convene Congress and make recess appointments in the interim between sessions raised important questions that continue to be relevant today. This foresight, demonstrated in his discussions with Professor Kalt, challenges conventional interpretations of presidential authority in legislative proceedings.
While recent debates have focused on the President’s ability to adjourn Congress, Seth’s work highlights the equally significant power to convene Congress and potentially create a new session for recess appointments. These nuanced discussions, rooted in historical precedent and constitutional text, offer valuable insights into the complexities of executive-legislative interactions.
In his responses to Professor Kalt’s critiques, Seth further elucidates the intricacies of defining a “session,” “recess,” and “adjournment” in the context of terminating recess appointments. By drawing on historical sources and legal precedents, Seth challenges assumptions about the Senate’s unilateral power to terminate sessions and underscores the importance of understanding these terms in the context of constitutional interpretation.
Jefferson does not discuss the option of the President adjourning Congress in the event of a disagreement between the chambers. However, Article II, Section 3 of the Constitution clearly states that this is the alternative to a “joint vote.”
I value this insightful discussion because it took place almost twenty years ago, at a time when the outcomes of the theories were still unknown.
