Some Problems with the Recess Appointments Decision
I applaud the result of the recess appointments case and I am happy to have been cited again in a Supreme Court opinion (this time by Justice Scalia). But in several respects the case exemplifies what is wrong with constitutional jurisprudence today.
In National Labor Relations Board v. Noel Canning, the Court was unanimous in holding that certain presidential appointments to the National Labor Relations Board did not qualify as proper recess appointments. But it otherwise split 5-4, with Justice Breyer writing the majority opinion and Justice Scalia the concurrence.
The majority opinion addressed three issues: (1) whether the constitutional phrase “the Recess” could apply to short breaks in the middle of a session, (2) whether to “happen” during a recess the vacancy had to arise during the recess or whether it could be a carry-over vacancy from earlier, and (3) whether the Senate was in session or recess for constitutional purposes when it carried out nominal “pro forma” sessions.
To decide the case as the majority needed to, it was necessary only to conclude as the majority ultimately did: the rules of the Senate control its own sessions. In the normal course of legislative proceeding, if the Senate says it is in session, then the Senate is in session. So there could be no recess appointment.
Yet the majority first dealt unnecessarily with the other two issues. Courts are not supposed to pontificate on legal issues unnecessarily.
That was the first problem. The second problem was that the Court relied almost exclusively on post-ratification evidence to determine the meaning of “the Recess” and “happen.” That is reading history backwards. Post-Founding events are rarely reliable guides to Founding-Era meaning because post-Founding events hadn’t happened yet. Duh. Yet the Court, like many legal writers, repeatedly resorts to events that could not have been part of the ratification-era understanding because they were years, even decades, in the future.
To be sure, you can justify considering later practice when the Founding-Era meaning is truly ambiguous. (This is sometimes called “liquidation,” which means “clarification.”) But in this instance, the Founding-Era meaning certainly is not ambiguous.
The third problem was that the majority simply ignored the tidal-force of the evidence on the meaning of “the Recess” and “happen.” Beyond reasonable doubt, “the Recess” as the Constitution uses the term means only the intersession recess. Beyond reasonable doubt, “happen” means “occur,” “arise.” It does not mean “continue.” By the way, Justice Breyer downplayed some of this evidence by claiming that the Founders didn’t know of intra-session breaks (other than the formal “the Recess”), but this is inaccurate.
The fourth problem is that the majority adopted what it called a “functional” balancing-type test to determine what intra-session breaks did and did not qualify as “the Recess.” Justice Breyer distinguished this from what he disparagingly called a “formalistic” approach. Thus, he told us that three days was too short to be “the Recess,” that there was a “presumption” that less than 10 days was too short, etc. He left the details to be balanced over and over again, perhaps interminably, in future litigation.
Justice Breyer is a very bright man (a former Harvard law professor), and in his constitutional opinions he resorts a great deal to such “functional” and “balancing” tests. At some point, though, he should understand that constitutions and laws are written mostly for people not smart enough to teach at Harvard. We need bright lines. We need formalism. All indications are that in the Recess Appointments Clause, as in most other constitutional provisions, formalism is what the Founders intended we should have. It is what the American people adopted. That means in interpreting a phrase like "the Recess of the Senate” as it applies to a legislative body, we should construe it consistently with contemporaneous legislative practice.
(Interestingly enough, in deciding that pro forma sessions were sufficient to break up recesses, Justice Breyer did return to formalism.)
Also, a quibble with the concurrence: Justice Scalia’s opinion understated the force of the argument on the meaning of “happen.” I provided numerous examples in the second part of the article he cited earlier in his opinion, but for some reason Scalia's concurrence didn’t pick up on them. Instead, he got bogged down reading history backwards -- reciting mostly occurrences from after the Founding.
Since the Court’s misinterpretation of “the Recess” and “happen” were unnecessary to the result, they should be treated as pure dicta, and therefore not binding on future Courts. A panel of future justices, less clever but wiser, can then more readily correct the error.
Rob Natelson, a retired law constitutional law professor and noted originalist scholar, is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver and author of the book, The Original Constitution: What It Actually Said and Meant.