Neither Originalism nor Nonoriginalism allows a broad recess appointments power

Michael B. Rappaport from the University of San Diego explains why he believes the President should have very narrow powers to appoint officials during a congressional recess. Note:  Rappaport filed a Supreme Court brief in the Noel Canning case.

Joint_Session_of_Congress-450x300This week the Supreme Court heard arguments in the Recess Appointments Clause case of NLRB v. Noel Canning.  While the executive branch has interpreted the Clause to provide extremely broad authority, allowing the President to bypass Senate confirmation whenever he wants to, I believe that the Clause has a much narrower meaning.

In 2005, I published a paper – The Original Meaning of the Recess Appointments Clause – that argued for this narrow interpretation based on the original meaning of the document.  At the time, this was an extremely unpopular position, securing only one vote out of 11 judges on the 11th Circuit.  Over time, though, the interpretation has grown more popular and the reasoning of my article was relied upon by all three of the federal circuit courts that struck down President Obama’s recent recess appointments.

This interpretation is based on the original meaning.  What about people who don’t accept originalism as the proper way to interpret the Constitution?  And what about the practice of recess appointments over time.  In a new paper – Why Nonoriginalism Does Not Justify Departing from the Original Meaning of the Recess Appointments Clause – I address various nonoriginalist arguments and show that they do not justify departing from the Clause’s original meaning.

A common argument made against following the original meaning of a provision is based on living constitutionalism. Under this approach, the original Constitution is seen as an old, potentially outdated document and judges are viewed as having the power to update its provisions to take into account modern values and circumstances. And it is clearly true that the circumstances governing appointments have changed since the late 18th century, when antiquated transportation methods generally led the Senate to take recesses of between 6 to 9 months.

But these changes in circumstances argue for narrower, not broader recess appointment authority. In a world with airplanes, Senate recesses are shorter and therefore there is less need to allow the President to make unilateral appointments. Moreover, modern appointment practices indicate that appointments take a long time, with on average nominations taking 4 months and appointments taking 5 to 6 months. This evidence suggests that short recesses of 10 or 30 days, which delay appointments by only a fraction of the ordinary appointment process, do not justify bypassing the senatorial confirmation requirement.

The most common and probably the strongest argument for departing from the original meaning is based on historical practice. Defenders of the executive branch’s view of the Clause argue that the political branches have followed a practice allowing broad recess appointment power and that this practice has either been agreed to or acquiesced in by the legislature.

My Article reviews the recess appointment practice and argues that this account of the practice is mistaken. It shows that Congress passed statutes in 1863 and 1940 that have rejected the executive’s broad view.  And, as the executive has asserted recess appointment power more aggressively in recent years, the legislative houses have resisted this authority by holding pro forma sessions.

But even if the executive’s interpretation of the Clause were supported by historical practice, my paper argues that would not justify departing from the original meaning. The Congress or Senate’s consent or acquiescence is insufficient to justify departing from the Constitution. If the Senate consented to an expansion of the President’s recess appointment power, that agreement might be a desirable arrangement from the perspective of the President and the Senate. But the purpose of the Constitution is to protect the people, not to further the interests of the political branches, and senatorial consent is an essential aspect of such protection.

Michael B. Rappaport is Hugh and Hazel Darling Foundation Professor of Law, and Director, Center for the Study of Constitutional Originalism, at the University of San Diego. Rappaport filed a brief in the Noel Canning case. His publications include Originalism and the Good Constitution (with McGinnis) (Harvard University Press, forthcoming, 2013).

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