Why non-originalism does not justify departing from the original meaning of the recess appointments clause.

• Author: Rappaport, Michael B.
• Position: Introduction into III. The Actual Price B. The Type of Recess Issue: 1789 to 1940, p. 889-931

INTRODUCTION I. THE ORIGINAL MEANING A. The Happen Issue B. The Type of Recess Issue C. The Modified Intersession View II. LIVING CONSTITUTIONALISM A. The Value of Senatorial Confirmation and the Cost of Longer Vacancies B. The Length of the Modern Appointment Process C. The Valuation of Benefits and Costs by the President and the Senate D. Other Changed Circumstances E. Implications for the Meaning of the Recess Appointments Clause III. THE ACTUAL PRACTICE A. The Happen Issue: 1789 to 1940 B. The Type of Recess Issue: 1789 to 1940 1. The Johnson Recess Appointments a. The First Set of 1867 Recess Appointments b. The First Set of 1868 Recess Appointments c. The Second Set of Recess Appointments in 1867 and 1868 d. The Recess Appointments Under the Modified Inter session View 2. The Knox and Daugherty Opinions and Subsequent Recess Appointment Practice C. The Pay Act Amendment of 1940 1. The Happen Issue 2. The Type of Recess Issue D. Interpretation of the Pay Act Amendment and the Recess Appointments Clause E. The Recent Change in Practice and Expansion of Executive Power F. Resisting the Broad Recess Appointment Power with Pro Forma Sessions G. Conclusion IV. THE SENATE'S CONSENT OR ACQUIESCENCE V. RELIANCE VI. RECESS APPOINTMENTS AS A MEANS OF AVOIDING THE FILIBUSTER CONCLUSION INTRODUCTION

The Constitution requires officers to be appointed through a process of presidential nomination and senatorial consent, but the Recess Appointments Clause allows the President alone to make temporary appointments during Senate recesses. In this way, the President can fill offices even if the Senate is not available to confirm a nominee.

A key issue is how broad the President's recess appointment authority is. The scope of this authority turns on two basic questions of interpretation of the Clause's language providing the President with the "Power to fill up all Vacancies that happen during the Recess of the Senate." (1) The first question--the happen issue--concerns when a vacancy must "happen" for the President to be able to make a recess appointment to fill it. The second question--the type of recess issue--involves what type of legislative breaks constitute a "recess of the Senate" that allows a recess appointment.

In a 2005 article, I argued that the original meaning of the Clause incorporates a narrow understanding as to both issues. (2) According to the original meaning, the President can only make a recess appointment to fill a vacancy that arises during the recess of the Senate. If the vacancy arises during the Senate session, it cannot be filled with a recess appointment. A recess of the Senate, moreover, is a special type of legislative break that ends a Senate session. A legislative break during the session is an adjournment, not a constitutional recess. This understanding of the Recess Appointments Clause historically would have allowed the President to fill vacancies when a recess actually prevented the Senate from confirming a nominee, without giving the President broad authority to bypass the Senate when his nominee could not secure confirmation.

Last term, the Supreme Court in NLRB v. Noel Canning addressed these issues for the first time. In an opinion concurring in the judgment written for four members of the Court, Justice Scalia adopted the narrow interpretation of the Clause on these two issues, largely following the theory developed in my earlier article. (3) In my view, Justice Scalia persuasively showed how the Clause's language, reinforced by constitutional structure and purpose, strongly indicates that the narrow interpretation as to both the happen and type of recess issues was the original meaning.

Justice Breyer, however, in a majority opinion written for five Justices, rejected these interpretations. Largely accepting the view of the Clause put forward by the executive branch, Justice Breyer concluded that the Clause conferred much broader power with respect to both issues. Justice Breyer stated that the President can fill a vacancy irrespective of when it arises so long as the vacancy happens to exist during a recess. (4) This means that the President can make a recess appointment for any office so long as he simply waits until a recess occurs.

Justice Breyer also interpreted the Clause to allow recess appointments to be made during all legislative breaks of a certain length, whether or not they occur during a legislative session. While not defining the requisite length with precision, Justice Breyer concluded that a break of at least ten days would allow a recess appointment. (5) When combined with the broad view as to when a vacancy happens, this interpretation allows the President to make a recess appointment for any vacant office during the six to ten legislative breaks of ten days or more that typically occur each year. Thus, under the majority's interpretation, the President ordinarily has expansive authority to bypass the Senate confirmation requirement throughout the year.

How did Justice Breyer attempt to justify this broad authority? Breyer largely relied on three considerations that he believed supported this interpretation. First, he maintained that the Clause's language as to both the happen and type of recess issues was ambiguous, permitting either the narrow or broad interpretation. He then argued that both the purpose of the Recess Appointments Clause and governmental practice supported the broad interpretation.

There are two ways to view Breyer's arguments. One way is to read him as offering an interpretation consistent with originalism. Under this view of his opinion, the ambiguity in the Clause's language allows the Court to consider purpose and subsequent practice as a means of resolving the uncertainty. But Justice Breyer's arguments are problematic if viewed as originalist interpretation. His conclusion that the language is ambiguous is weak. A review of the constitutional language in context shows that it strongly favors the narrow interpretation as to both issues. (6)

Justice Breyer's purpose argument is also problematic because it employs a non-originalist understanding of purpose. Rather than looking to purpose as evidence of the content of the provision that the constitutional enactors passed, Breyer largely divorces purpose from the enactors. (7) Breyer also uses practice differently than originalists generally do. In originalist theory, early practice is most important, but Breyer largely discounts such practice, relying most strongly on twentieth and twenty-first century practice. (8)

The better way to view Breyer's opinion is as a form of non-originalism. The problems I have noted with viewing the opinion as originalist as well as Breyer's own criticisms of originalism strongly support this interpretation. (9) Under this view, Breyer's purpose arguments are not a way of determining what the constitutional enactors were passing, but instead are largely a way of viewing the Clause as intended to do what judges or other modern government officials believe would be desirable in modern circumstances. In other words, purpose comes very close to being a method of engaging in living constitutionalism.

This non-originalist interpretation of Breyer's opinion also makes sense of his practice arguments. As noted, these arguments rely most substantially on the modern period and give effect to positions that constituted changes from those taken earlier in the nation's history. Under the non-originalist interpretation of his opinion, reliance on these modern practices is a way of giving effect, not to the Constitution's original meaning, but to the non-originalist meaning that resulted from the choices of government officials over time.

In this Article, I address these and other non-originalist arguments for the broad interpretation of the Recess Appointments Clause, arguing that they cannot justify the broad interpretation. While I continue to believe that the broad interpretation is inconsistent with originalism, I here maintain that the broad interpretation also cannot be defended by non-originalism. Thus, the problems with the broad interpretation are not limited to one methodology.

Perhaps the most common non-originalist consideration provided for not following the original meaning--the existence of one or more non-originalist Supreme Court precedents--could not be used to justify the broad interpretation in Noel Canning. (10) The Supreme Court had never before written an opinion interpreting the Clause and therefore the Court was addressing the issue with a judicial blank slate. It is often acknowledged that in the absence of Supreme Court precedent, originalist arguments have more weight. (11)

Another common argument made against following the original meaning of a provision is based on living constitutionalism. (12) This approach can be pursued openly or as a gloss on other concepts, such as purpose. Under this approach, the original Constitution is seen as an old, potentially outdated document, and judges are viewed as having the power to update its provisions to take account of modern values and circumstances. And it is clearly true that the circumstances governing appointments have changed since the late-eighteenth century when antiquated transportation methods often led the Senate to take recesses of between six and nine months. (13)

But these changes in circumstances argue for narrower, not broader, recess appointment authority. In a world with airplanes, Senate recesses are shorter, and therefore there is less need to allow the President to make unilateral appointments. Moreover, modern appointment practices indicate that appointments take a long time, with nominations taking four months and appointments taking five to six months on average. This evidence suggests that short recesses of ten or thirty days, which delay appointments by only a fraction of the ordinary appointment process, do not justify bypassing the senatorial confirmation...