Season 4, Episode 49 (Show 206): Recess Games – Special Guests Josh Chafetz and Thomas Schmidt

December 11, 2024

The promised article in The Atlantic on the worrisome possibility of a recess conspiracy is out; in this episode we have all three authors of the article discussing its theme, background, and fine points.

CLE Credit Available for this episode from podcast.njsba.com.

Could Republicans in the House conspire with a 2025 President Trump to manufacture a forced Senate recess in an effort to bypass the advise and consent appointments process?  The much-anticipated article in The Atlantic has been published, to widespread approval.  We proudly present all three co-authors of this article in a wide-ranging, nuanced, fascinating discussion, as Professors Josh Chafetz, Tom Schmidt, and of course Akhil Amar reunite to take us from Restoration England to the chambers of the Supreme Court where Professor Schmidt clerked for Justice Breyer, the author of the principal case on recess appointments, NLRB v. Noel Canning, in 2014.  We hear how that case has lessons, and yet is distinguished, from the scenario here, and what might happen if the contemplated maneuvers, deemed grossly unconstitutional by our experts, try it anyway. 

(LAWYERS AND JUDGES ARE ELIGIBLE FOR CONTINUING LEGAL EDUCATION CREDIT by visiting podcast.njsba.com after listening.)

Show Notes:

How to get Continuing Legal Education Credit for listening!

Virtually all lawyers and judges admitted to practice anywhere in the USA can obtain CLE (Continuing Legal Education) credit after listening to this episode by visiting podcast.njsba.com.  You do not have to be a New Jersey lawyer or resident or admitted to the NJ Bar; essentially every state has reciprocity arrangements with New Jersey.  When you visit the site you fill out a form and provide the code Andy read during the episode, pay a small fee, and within two weeks you will receive the certificate from New Jersey.  It couldn’t be easier.  Thanks to the New Jersey Bar Association for making this possible!  Note, too, that other podcast episodes from our “back catalog” now qualify for this credit as well.

Click to go to the website for CLE credit

No, Trump Can’t Just ‘Dismiss’ the Senate - The Atlantic

Our panel co-authors in The Atlantic on recess appointments, the role of the Senate, the historical background to concepts of adjourning and convening the legislature, and some nasty business that should never be permitted to be attempted.

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NLRB v. Noel Canning (2014)

The key case on recess appointments.  Justice Breyer writes for a unanimous Court, but with a strongly worded concurrence in the judgment authored by Justice Scalia.

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Constitutional Limits on the President’s Authority to Adjourn Congress - Allen Erbsen on SSRN

Professor Erbsen writes from the University of Minnesota on a variety of issues related to the Adjournment Clause and its relationship (or lack thereof) to recess appointments, on SSRN.

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