Almost a decade ago, the particular Recess Appointments Clause questions at issue in Noel Canning – whether “the Recess” can include intrasession Senate breaks, and whether the President can fill an office that became vacant before the Recess — were the subject of litigation challenging the recess appointment of William Pryor to the U.S. Court of Appeals for the Eleventh Circuit. Marty Lederman and I were both involved in that litigation: He was one of the counsel to Senator Kennedy in challenging the recess appointment of Judge Pryor, and I worked on the litigation in the SG’s Office.
In discussions between us about Noel Canning, we have compiled a helpful, albeit partial, list of sources for those wishing to read up on these particular aspects of the Recess Appointments Clause. They are set forth below in no particular order:
1. AG Randolph Opinion (July 7, 1792)
2. AG Wirt Opinion, 1 Op. Att’y Gen. 631 (1823);
3. Treasury Solicitor O’Connell’s letter (1901) (three days before Knox!)
4. AG Knox Opinion, 23 Op. Att’y Gen. 599 (1901);
5. AG Daugherty Opinion, 33 Op. Att’y Gen. 20 (1921);
6. 1863 Senate Judiciary Committee Report
7. 1905 Senate Judiciary Committee Report (as reproduced in the Congressional Record)
8. Ed Hartnett’s Recess Appointments of Article III Judges;
9. Michael Rappaport’s The Original Meaning of the Recess Appointments Clause;
10. Michael Herz’s Abandoning Recess Appointments?;
11. Senator Mitchell’s 1993 statement on recess appointments and a draft amicus brief he wanted the Senate Legal Counsel to file.
12. The Eleventh Circuit’s decision in Evans v. Stephens
13. Senator Kennedy’s brief in Evans (Marty was counsel)
14. Senator Kennedy’s brief in Franklin v. United States (Marty was counsel)
15. The government’s brief in Miller v. United States (I was counsel)
16. The government’s brief in Franklin v. United States (I was counsel)
Briefs in the Noel Canning case are available here.
Several Congressional Research Service Reports are available here.
And here is a very comprehensive guide to AG opinions on the subject, which includes several links.