Symposium on the Recess Appointments Clause and the Noel Canning Case

The Scotus Blog is having a symposium on the Recess Appointments Clause and the Noel Canning case.  The symposium will last until Wednesday of this week.

My own entry – “The originalist and non-originalist cases for following the original meaning of the Recess Appointments Clause” — is up.

Here are a couple of excerpts:

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.

Later I write:

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.

I invite readers to take a look at the whole post as well as the other posts by the symposium contributors, which are likely to cover the range of views on the issue.