Last May, I reported that litigation over President Obama’s “recess appointments” was going to the Supreme Court. In fact, oral argument was held a few weeks ago.

The Harvard Journal of Law and Public Policy has just published my article on the original meaning of the Recess Appointments Clause. It reports that the Constitution uses the term “the Recess” to refer only to formal breaks between sessions of the Senate, not to informal intra-session breaks. It also reports that a vacancy “happens” only when it is created during the Recess. It is not sufficient for the vacancy to be created when the Senate is in session and then continue into the recess.

These conclusions are based on detailed, impartial, study of Founding-Era legislative and other governmental practice—apparently the first article on this topic to report the results of such a study.

This article was cited to the Supreme Court both in the Independence Institute’s amicus brief on the case, and by at least one of the parties. You can find it here.

Rob Natelson

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

LEARN MORE

01

Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles

02

Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog

03

State of the Nullification Movement

232 pages. History, constitutionality, and application today.

get the report

01

Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty

02

Maharrey Minute

The title says it all. Mike Maharrey with a 1 minute take on issues under a 10th Amendment lens. maharrey minute

Tenther Essentials

2-4 minute videos on key Constitutional issues - history, and application today

TENTHER ESSENTIALS

Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!

JOIN TAC

01

The 10th Amendment

History, meaning, and purpose - the "Foundation of the Constitution."

10th Amendment

03

Nullification

Get an overview of the principles, background, and application in history - and today.

nullification