I know that interest in Recess Appointments has waned since the Supreme Court decided the Noel Canning case last year, but I have been brought back to the subject, since I have been doing the final edits on an article I wrote last year (that was cited several times by Justice Scalia’s concurrence).  The article – Why Nonoriginalism Does Not Justify Departing from the Original Meaning of the Recess Appointments Clause – focuses on the practice of recess appointments over the 225 years since the enactment of the Constitution.

Unfortunately, Justice Breyer’s opinion for the majority has, for now at least, misinterpreted the Recess Appointments Clause.  But one feature that the article discusses is of continuing relevance.  In 1940, Congress passed a statute, codified at 5 U.S.C. 5503, which restricts payment of salaries to recess appointees when the vacancy that they fill existed while the Senate was in session.  The statute then permits three limited exceptions to the prohibition on payment.

Depending on how one interprets the statute, the statute could have had a significant role in limiting the President’s recess appointment power.  As with all things involving the recess appointments issue, the Executive Branch has been exceedingly aggressive in interpreting the statute to favor its interests.

The matter is really too complicated to explain in any detail here.  But to just get at the surface of things, both the Constitution’s Recess Appointments Clause and the statute use the terms “recess” and “session.” (Many of the differences between the two contending constitutional interpretations of Breyer and Scalia turn on how one interprets these terms.)  There is a strong argument that – however one interprets the terms “recess” and “session” – one should interpret them in the same way as to both the Constitution and the statute, since the statute was intended to operate in tandem with Constitution as a check on the executive.

Unsurprisingly, the Executive Branch does not do that.  It interprets “recess” and “session” to have one meaning under the Constitution and another meaning under the statute, and as a result it gives itself more power to make recess appointments and to pay them from congressionally enacted funds.  It is really pretty scandalous.

Ultimately, the Executive Branch attempts to justify these interpretations through the same sleight of hand it regularly uses in this area.  It claims that the Constitution as well as the statute had the purpose of allowing vacancies to be filled; therefore, the Constitution or statute should always interpreted to enhance the President’s recess appointment power.  Of course, this is clearly mistaken: the purpose of the Constitution and the statute was to allow vacancies to be filled, subject to the constraint that the President should not be allowed to circumvent the Senate confirmation requirement.