Robert G. Natelson (The Independence Institute; Montana Policy Institute) has posted The Origins and Meaning of 'Vacancies that May Happen During the Recess' in the Constitution's Recess Appointments Clause (Harvard Journal of Law and Public Policy, Vol. 37, No. 1 (2014), Forthcoming) on SSRN. Here is the abstract:
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There has been longstanding uncertainty about the meaning of “the Recess” and “Vacancies that may happen” in the Constitution’s Recess Appointments Clause. This Article finds that both “the Recess” and close variants of “Vacancies that may happen” were standard terms in Founding-Era legislative practice, and appear copiously in legislative records. Those records inform us that “the Recess” means only the inter-session recess and that a vacancy “happens” only when it first arises.
This revised version discusses a variety of issues that will be of interest to those following National Labor Relations Board v. Noel Canning.