Evans v. Stephens’s Empirical Analysis

Citation profile

11 federal appellate · 3 district · 1 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 18 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “About the phrase in the Recess Appointments Clause that speaks of filling "Vacancies that may happen during the Recess," we accept this phrase, in context, means that, if vacancies "happen" to exist during a recess, they may be filled on a temporary basis by the President. This view is consistent with the understanding of most judges that have considered the question, written executive interpretations from as early as 1823, and legislative acquiescence. On its face, the phrase is open to more than one interpretation. For example, the word "happen" can be defined as "befall" which has been defined as "happen to be." Therefore, the phrase's most accepted interpretation (upon which the President has relied and that we too accept) does not contradict the plain meaning rule. In addition, as we understand the history, early Presidents-when delegates to the Constitutional Convention were still active in government-made recess appointments to fill vacancies that originated while the Senate was in Session. For example, President Washington, during a Senate break in 1789, appointed Cyrus Griffin to fill a judgeship created during a previous Session; and President Jefferson, during a Senate break in 1801, appointed three judges to fill vacancies created during a previous Session. Congress at least implicitly agrees with this view of recess appointments. Furthermore, interpreting the phrase to prohibit the President from filling a vacancy that comes into being on the last day of a Sessio”

   1 later decision quote this exact passage
   e.g. Senate of State v. His Excellency Henry D. Mcmaster

2. “[Such an] interpretation would lead to the absurd result that all offices vacant on the day the Senate recesses would have to remain vacant at least until the Senate reconvenes. Not only judicial positions, but all offices within the purview of article II, § 2, clause 2 would have to remain vacant. The positions of cabinet members and other high government officials would have to remain unfilled until the return of the Senate. If a vacancy occurred on the last day before the Senate's recess, the President would be without power to fill that vacancy in the ensuing recess. Even assuming that the Senate was informed of the vacancy prior to its recess and the President submitted a timely nomination, the Senate would still be faced with the dilemma of either confirming a candidate of whose qualifications little is known or leaving that office vacant until the Senate reconvenes. We agree with the Second Circuit that this interpretation "would create Executive paralysis and do violence to the orderly functioning of our complex government."”

   1 later decision quote this exact passage · from the dissent
   e.g. Senate of State v. His Excellency Henry D. Mcmaster

3. “By interpreting the Recess Appointments Clause to allow a President to fill a vacancy created during one recess with an appointment made during a subsequent recess, we are effectively allowing a President to sidestep the Senate's advice-and-consent role even where the Senate is not disabled from fulfilling that role — which, I note again at the risk of repetition, was and still is the only reason for creating a recess appointment power. I do not believe that the Constitution permits a President to frustrate in this way the careful separation of powers intended by the framers.”

   1 later decision quote this exact passage · from the dissent
   e.g. National Labor Relations Board v. RELCO Locomotives, Inc.