The Recess Appointments Decision Part I: Nonoriginalism and Originalism

The Supreme Court’s recess appointments decision in Noel Canning was largely a disappointment from the perspective of originalism and the original meaning of the Recess Appointments Clause.

There were three issues involved in the case: (1) the type of recess issue (whether a recess appointment could be made only during an intersession recess or also during an intrasession recess); (2) the happen issue (whether a recess appointment could be made only to a vacancy that happened during the recess, or also to a vacancy that initially arose during the session); and (3) the pro forma issue (whether 1 minute sessions attended by 2 Senators count as real sessions).

A majority decision by Justice Breyer is almost always a bad thing for originalism. And that was true in Noel Canning. The majority got the type of recess issue wrong (saying that a recess appointment could be made during not only an intersession recess but also an intrasession recess). And it got the happen issue wrong (saying that a vacancy could be filled with a recess appointment not only if it happened during the recess, but also if it initially happened during the session).

Some people are happy that the majority still struck down the recess appointments on the ground that the pro forma sessions were real sessions and therefore the Senate’s recesses were too short to allow a recess appointment to be made. But I can’t even take solace in that conclusion, because I think it is likely that the pro forma sessions were not constitutional sessions. (More on this in a future post.)

But there is a silver lining here. The originalist concurrence by Justice Scalia was exceptional (and I personally feel gratified that he relied so heavily in it on my two recess appointment papers — see here and here). Moreover, when I first published my article on the Original Meaning of the Recess Appointments Clause in 2005, virtually no one adopted the view that I defended. And even after the D.C. Circuit surprised everyone by relying on the theory in Noel Canning, an astute observer of the Supreme Court’s separation of powers jurisprudence said at a Federalist Society event that he would buy me dinner if anyone other than Justice Thomas adopted my view of the happen issue. Yet, four justices embraced this view.

Moreover, there was good reason to be skeptical that Justices Alito and Roberts would sign on. Both of them have histories in the executive branch and therefore might have been hesitant to limit the President’s recess appointment power. And both of them have emphasized questions of practice, with Justice Alito especially seeming to be skeptical of originalism. Yet, both joined the opinion, with no reservations.

Justice Breyer’s opinion was obviously not an originalist opinion. It is true that it attempts to camouflage itself in originalist garb, but it is merely a faux originalism. There are two basic problems with the opinion. First, he claims that the Recess Appointments Clause was ambiguous. But Justice Breyer relishes the ambiguity, because it gives him an opportunity to depart from the constitutional constraints. Yet, he was way too quick to decide that the language was ambiguous. It is not enough to say that there were two meanings of “recess” at the time of the Constitution. It was true there were two meanings, but it is pretty clear that the ordinary meaning of recess (which would allow a 30 minute recess) was not employed in the Constitution and that the more technical legislative meaning was used. In this area, Justice Breyer, like other faux originalists, resembles Justice Foster in Lon Fuller’s Speluncean Explorers, whose favorite part of a statute were the holes in them.

Second, Justice Breyer does not attempt to resolve the alleged ambiguity correctly. Statutory purpose was one of the traditional means of resolving ambiguities, but not the way that Justice Breyer uses it – his is a New Dealer approach that allows judges to update the Constitution. Purpose requires putting oneself in the place of the people at the time, given their values and circumstances. It does not involve simply asserting what one regards as a good constitutional result, as Justice Breyer does.

In my next several posts, I will address various aspects of the Recess Appointments decision.