Symposium: The originalist and non-originalist cases for following the original meaning of the Recess Appointments Clause

This week we are hosting an online symposium on National Labor Relations Board v. Noel Canning, in which the Court will consider the constitutionality of the president’s recess appointments to the NLRB.  Lyle summarized the issues in the case last week in a “Made simple” post.

The following contribution comes from Michael Rappaport, the Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego.

The issues raised by National Labor Relations Board v. Noel Canning, which provides the Supreme Court with its first opportunity to interpret the Recess Appointments Clause, are easy to misinterpret.  Many people view the case as political or partisan.  After all, the recess appointments involved NLRB officials who decide issues that generate much political controversy.  The D.C. Circuit decision was written from an originalist perspective by a conservative judge and joined by two Republican appointees.  A Third Circuit decision, which also found the NLRB recess appointments unconstitutional on originalist grounds, was again supported by Republican appointees, with a dissent by a Democratic appointee.

But it is a serious and shortsighted mistake to view the issues at stake in partisan terms.  The easiest way to see this is to go back eight years, when President George Bush was recess-appointing judges who were being filibustered by the Democratic Senate minority.  At that time, a broad recess appointment power was attacked by liberals, including a court challenge joined by liberal icon Senator Ted Kennedy.  The resulting Eleventh Circuit decision allowing a broad recess appointment in Evans v. Stephens was written by a Republican appointee, with a strong dissent advocating a narrow interpretation of the Clause on originalist grounds written by liberal judge Rosemary Barkett.

While the recess appointments power can obviously be partisan in the short run, in the long run it concerns nonpartisan matters about the allocation of constitutional authority and checks and balances.  I have always viewed the Clause in these terms.  When I wrote my 2005 article on the Original Meaning of the Recess Appointments Clause, my position led me to contest the Bush recess appointments and to agree with Ted Kennedy – not a familiar position for me.  If we step back from today’s short-run politics, there are strong arguments based on the original meaning, on modern circumstances, and on maintaining limits on presidential power for following a narrow interpretation of the Recess Appointments Clause.

The Recess Appointments Clause provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”  There were two basic questions decided by the D.C. Circuit  in the case below: the “happen” issue and the “type of recess” issue.  The “happen” issue involves when the vacancy must happen for it to be eligible for a recess appointment.  Under the “arise interpretation,” the vacancy must arise during the recess for which the recess appointment is being made.  This interpretation derives from the Clause’s text, which speaks of filling up “vacancies that may happen during the Recess of the Senate.”  By contrast, the “exist view” claims that it does not matter when a vacancy arises so long as it exists during the recess.  As even advocates of the “exist view” have admitted, the Clause’s language supports the “arise interpretation,” because that is the more obvious and natural reading and because the words “that may happen” are redundant under the “exist view.”

Proponents of the “exist view” have argued that this textual weakness is overcome by the Clause’s underlying purpose to ensure that vacancies are filled during recesses.  But the executive has a one-sided view of that purpose, ignoring the Clause’s purpose to allow vacancies to be filled with a power that does not permit the executive to freely circumvent the requirement of senatorial consent.  Under the “exist view,” the President can fill any vacancy, whenever the vacancy arises, simply by waiting until a recess occurs.  The “arise view,” by contrast, would have allowed the President historically to fill virtually all significant vacancies that could not have been addressed by the Senate, without eviscerating the requirement of senatorial consent in other cases.

The second issue concerns the type of recess or legislative break for which a recess appointment can be made.  There are at least two different types of legislative breaks:  intersession recesses, which occur between the two annual sessions of the Congress, and intra-session recesses, which occur during the session of Congress.  The “intersession view” limits recess appointments to intersession recesses, whereas the “intra-session view” allows them during either intersession recesses or intra-session recesses of a certain length.

It makes sense that the original meaning would have protected only intersession recess appointments.  When the Constitution was enacted, intersession recesses lasted for six to nine months, and therefore it would have been necessary for the President to be able to fill offices that became vacant during this period.  By contrast, intra-session recesses were extremely short (such as three days) and therefore would not have required recess appointments.

The intersession view also makes sense textually.  Despite the modern usage of “intra-session recess,” the constitutional term “recess” refers only to intersession recesses.  When the Constitution refers to legislative breaks generally – either during the session or between sessions – it calls them “adjournments.”  The Constitution uses the terms “recess” or “adjournments” (including their close relatives, such as “adjourn”) in seven different clauses, and the meanings I offer make sense of all seven clauses.

The intra-session view also suffers from two other serious infirmities.  First, the Constitution contains no principled limitation – either explicit or implicit – for determining how long an intra-session recess needs to be to justify a recess appointment.  That means there will either be no limitation – which would lead to absurd results – or an arbitrary one.  Second, an intra-session recess appointment lasts longer – perhaps twice as long – as an intersession recess appointment, even though there is no policy reason for that and the shorter length of intra-session recesses suggests that such appointments should have shorter durations.

The original meaning, however, is not the only reason to favor the narrow interpretation.  Many people reject originalism in favor of living constitutionalism.  But a focus on modern circumstances and values does not support a broad recess appointment power either.  Providing the President with a recess appointment power was strongly supported by the long annual recess that existed when the Constitution was enacted.  This arrangement was the result of slow transportation to and from the nation’s capital.  But in a world of airplanes, the Senate now regularly holds between seven and twelve recesses per year, with most recesses lasting less than two weeks, and with recesses only in the rarest of cases extending to two months.  If the Constitution were written today, it is not at all clear that there would be a recess appointment power, and if one existed, it certainly would not extend to all of these recesses.

Defenders of a broad recess appointment power argue that a ten-day or twenty-day recess might leave positions vacant and therefore require recess appointments, but this is a vast overstatement.  First, short recesses of this type do not significantly contribute to the overall length of a vacancy.  In contrast to the rhetoric used to defend recess appointments for such recesses, appointments take a long time in the modern world.  Statistics indicate that the median length of time that it takes to appoint an official requiring senatorial consent is five months and that the average length of time from inauguration until confirmation for initial appointees is eight months.  A significant portion of this time is spent engaged in activities that improve the quality of the appointment, such as interviewing potential nominees and conducting background checks.  If substantial time is spent for these activities, then incurring additional time for senatorial confirmation – which is a key way that the Constitution ensures high quality appointments – is also appropriate.

Second, vacancies are not nearly as costly for law execution (or adjudication) as defenders of a broad recess appointment power suggest.  There are alternative ways of filling these positions, such as acting appointments.  Moreover, multi-member commissions do not require all of their members to be filled, because a subset of the commission can constitute a quorum for business.  Overall, modern appointment practices suggest that the additional time of ten or even thirty days does not justify bypassing senatorial confirmation, especially when recess appointments can last so long.

In the end, there is a strong argument for the Supreme Court to follow the original meaning here and adopt both the “arise” and the intersession views of the Clause.  Following the original meaning is supported not merely by originalist arguments, but also by considerations relevant to living constitutionalism. Of course, there is much more to say about the issue.  One might also favor a narrow interpretation as a means of placing limits on a continually growing presidential power.  There are also other arguments made for the broad interpretation, such as the claim that long practice supports it.  While there is not space to address this “practice” argument, the short answer is that the practice is entitled to little respect because it has been changing and has resulted from consistent and aggressive assertions of presidential power.  These assertions are based on problematic interpretations of both the Constitution and statutes, and are made with as little regard for the opposing views of the political branches as the president’s recent claim that the Senate was in recess, despite that house’s assertion to the contrary.  In my view, these additional arguments do not affect the basic point that the Constitution’s original meaning established a narrow exception to the requirement of Senate confirmation and that the broad view allows circumvention of that power with little benefit for the republic.