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The limits of the recess appointment power

Submitted by Simon on Mon, 04/26/2010 - 11:00am

Article II § 2 of the Constitution authorizes the President "to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." On the 26th of last month, the Senate entered recess, see 156 Cong. Rec. S2180 (2010), and the following day, President Obama announced fifteen recess appointments. This essay will explain why I don't think those appointments are valid, and why circuit-level caselaw to the contrary is unpersuasive.

I.

The recess appointments clause is no stranger to these pages. I talked about it in 2007 and revisited it in February, so I'm on record saying what follows under two Presidents. This is not a partisan issue. Principles stay the same even when power has changed hands (cf. SF: 10 Things That Aren't Changing (11/5/08)). In 2007, however, my position was an admission against interest, so I was content to cite Michael Rappaport's persuasive and thorough treatment of the issue. Since the political valence of my legal position has now shifted in my favor, it behooves me to say a little more.

My concern is that none of the vacancies filled by Obama are eligible for a recess appointment. To make these appointments, the President must rely on a longstanding but erroneous interpretation of the clause which effectively rewrites it, to wit: "The President shall have power to fill up all vacancies that may exist during the recess of the Senate." (Or, perhaps, "may happen to exist"). We'll refer to this as the "exist" or "prevailing" interpretation, in distinction from the "arise" interpretation. Syntactically, the phrase "may happen" means "may happen to occur," and it cannot reasonably be twisted to mean "may happen to exist." Nor are attempts to escape the clause's textual limits via purposive analysis persuasive. Thus, because these vacancies predate the Senate's adjournment, they are not vacancies which "happen[ed] during the recess of the Senate," and the President's appointments are for this reason ultra vires.

II.

In saying this, I recognize that the weight of what little authority exists on the question is against me. See Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004); United States v. Woodley, 751 F.2d 1008, 1012 (9th Cir. 1985) (en banc); United States v. Allocco, 305 F.2d 704 (2d Cir. 1962); In re Farrow, 3 F. 112, 1880 U.S. App. LEXIS 2527 (C.C.N.D.Ga. 1880). None of these cases, however, distinguish themselves with conspicuously persuasive reasoning, and two—Evans and Woodley—were decided over vigorous dissents. The earlier cases rely on opinions of the attorney general, the later cases rely on the earlier cases, and none deal seriously with the text, giving some force to Steven Pyser's suggestion that they represent a "precedential cascade."1

In Woodley, the Ninth Circuit—with all the analytical care for which it is justly reputed—dismissed the issue as "technical," and argued that the "arise" interpretation "conflicts with a common sense reading of the word happen…." 751 F.2d, at 1012. Common sense points the other way, it seems to me. For example: Are we to believe that when the Fifth Circuit said that a carrier is "accountable for any damage or loss [to goods] that may happen … in the course of the conveyance,"2 it meant that a carrier is accountable for any damage or loss that may happen to exist while goods are in their care? Of course not. The common sense understanding of "may happen" is "may occur."

Woodley complains that the "arise" interpretation would produce the "absurd result that all offices vacant on the day the Senate recesses would have to remain vacant at least until the Senate reconvenes." 751 F.2d, at 1012. Allocco makes the same point, and does no more work on its behalf. Conceding that the argument that the word "happen" "cannot easily be understood to mean anything but 'fall open'" was "forceful," the court nevertheless fretted that "'the logic of words should yield to the logic of realities.'" 305 F.2d, at 710 (quoting DiSanto v. Pennsylvania, 273 U.S. 34, 43 (1927) (Brandeis, J., dissenting)). Anticipating Woodley's absurdity argument, the Second Circuit worried that in order to accept the "arise" interpretation, it must also

be prepared to accept … [the] conclusion that judicial offices which are vacant on the day the Senate adjourns must remain vacant until the Senate reconvenes and has the opportunity to fill them. Moreover, this would imply a belief that the Constitution also prohibits the recess appointment of cabinet members, ambassadors, and of all other high government officers within the purview of Article II, Section 2, if vacancies in their offices existed on the day of adjournment; for we perceive nothing in the Constitution which indicates that judicial appointments are to be treated differently from any other appointments subject to Senate confirmation."

Ibid. Is it really "inconceivable that the drafters of the Constitution intended to create such a manifestly undesirable situation"? Ibid. We will discuss this in part III.B.3, infra. For now, it suffices to say, that Allocco asks the wrong question; Woodley is closer to the mark, but as Lord Bramwell remarked in Hill v. East & West India Dock, 9 App. Cas. 459, 465, "I should like to have a good definition of what is such an absurdity that you are to disregard the plain words of" an authoritative text. The trouble with the absurd results doctrine is that "what seems absurd to one man does not seem absurd to another."

To this brew, Evans adds merely an explicit reliance on the presumption of constitutionality. Observing that while "the presumption is a rebuttable one," the Eleventh Circuit maintained that "the burden is on the challengers to overcome it with their arguments and to persuade us to the contrary. Just to show that plausible interpretations of the pertinent constitutional clause exist other than that advanced by the President is not enough." 387 F.3d, at 1222. The decision to afford this presumption is supported by a puzzling citation of United States v. Nixon's observation that "[i]n the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others." 418 U.S. 683, 703 (1974). Puzzling because Nixon, in its very next breath, rejected the executive branch's interpretation of the Constitution and underscored the judiciary's authoritative lawsaying role. See ibid.

At any rate, Evans held that since "may happen" can plausibly be interpreted to mean "happen to exist during a recess," see 387 F.3d, at 1226, the executive branch's longstanding insistence on the "exist" interpretation prevailed. But the panel opinion overturned by the en banc Ninth Circuit in Woodley anticipated and debunked this argument. See 726 F.2d 1328, 1337-39 (9th Cir. 1984). It merits reading in full, but its nub is that while "[h]istorical acceptance and governmental efficiency are not unimportant," these will not "'save [a practice] if it is contrary to the Constitution.'" Id., at 1338 (quoting INS v. Chadha, 462 U.S. 919, 944 (1983)); cf. Rutan v. Republican Party of Illinois, 497 U.S. 62, 96 n.1 (Scalia, J., dissenting). Noting the longevity of an interpretation "hardly complete[s]" the analysis, for "[h]istorical practice, while persuasive, does not create constitutional validity."3 Cf. SF: Tradition and the burden of proof (2/2/10); SF: Line of succession, redux (7/28/08); SF: Gillis v. Litscher (11/17/06).

For my own part, I have repeatedly noted my skepticism of the presumption of constitutionality, and now reject it to the extent implicated here. Whatever the merits of such a presumption in vacuo, they surely approach their perigee when the actor's interpretation is unreasoned and self-serving insofar as tending to maximize his own power or discretion.4If a President was to conclude that the recess appointment clause did not authorize him to make an appointment without Senate consent, that conclusion would deserve greater deference than the contrary view, for the same reason that an admission against interest is subject to lessened scrutiny. Cf., e.g., Centralizing Border Control Policy, 26 Op. OLC (2002). This is particularly so where the Constitution's plain meaning, purpose, and structure all militate against accepting that view. As Judge Barkett’s dissent in Evans concluded: "the plain meaning of the Recess Appointments Clause directly, expressly, and unambiguously requires that before a vacancy can be filled through the recess appointment power, that vacancy must have occurred during a Senate recess." 387 F.3d, at 1229 (Barkett, J., dissenting) (hereinafter "Barkett dissent").

III.

A. Textual obstacles to the "exist" reading.

None of the cases cited above are persuasive. Their foremost failing is the short shrift they give the text.

1.

The touchstone of Constitutional interpretation “is the original public meaning that the text’s words and phrases would have had, in context, to an objective, informed reader and speaker of the English language within the relevant political community, at the time the Constitution was written and adopted.” 5 The meaning of the recess appointments clause could therefore turn entirely on the clarity of its key verb: "happen." And founding-era dictionaries appear to uniformly understand "happen," in this context, to mean "occur" not "exist."6 This argument is simple and brief to state, but it has such clarity and force that, in my view, it would by itself suffice to demolish the prevailing interpretation.

2.

We might also consider the use of the word "happen" elsewhere in the Constitution. See Akhil Amar, Intratextualism, 112 Harv. L. Rev. 747 (1999); Barkett dissent, 387 F.3d, at 1231. It occurs in Article I § 2 ("When vacancies happen in the Representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies"); more resoundingly, we meet it in Article I § 3 clause 2, which addresses the replacement of Senators who leave office during their term. Clause 2 provides that "if vacancies happen … during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies. Like the recess appointments clause, this text must be understood as an auxilliary provision. The principal means for appointing Senators is found in clause 1 of that section ("[t]he Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years"); clause 3 doesn't provide for the filling of vacancies when the legislature is not in recess, so the inference must be that in those situations, clause one controls, as there is then no impediment to the legislature acting to make the appointment.

The latter is particularly interesting because it was construed by the Senate in the early years of the republic. On March 24, 1794, Kensey Johns presented himself to the Senate, bearing credentials showing that he had been appointed Senator for Delaware by Governor Joshua Clayton.7 The Senate mulled this for a few days, and on March 28, refused to seat Johns. The Elections Committee reported that Delaware's Senate seat had been vacated on December 18, 1793, when George Read resigned it. Although the legislature of Delaware had been in recess on that day, Clayton did not appoint Johns until March 19, and the legislature met in January and February. Thus, the Senate voted 20 to 7 to reject Johns.8 The intervening legislative session acted as a circuit breaker: The vacancy had arisen during a recess, but not this recess. The Senate's conclusion necessarily entails an understanding of "happen" as a discrete event; if it was instead situational, the legislature's failure to fill the vacancy during its January-February sitting would have posed no obstacle to Johns' appointment since the vacancy would still have existed on March 19. Cf. Barkett dissent, 387 F.3d, at 1234 ("In between a recess during which the vacancy was created and a recess during which it is filled, the Senate would be in active session and would be perfectly capable of carrying out its advice-and-consent responsibilities").

Lastly under this head, although it is not dispositive, it is interesting to notice that the clause was proposed late in the convention by Dobbs Spaight of North Carolina. In that light, Article XX of North Carolina's 1776 Constitution is striking: "in every case where any officer, the right of whose appointment is by this Constitution vested in the General Assembly, shall, during their recess, die, or his office by other means become vacant, the Governor shall have power, with the advice of the Council of State, to fill up such vacancy, by granting a temporary commission, which shall expire at the end of the next session of the General Assembly" (emphasis added). This provision uses slightly different language to accomplish the same end as the clause proposed by Spaight, and its wording makes even more clear that it responds to a discrete event rather than an ongoing situation. It seems very likely that Spaight and his fellow North Carolinians had a similar operation in mind, and no reason occurs to me for doubting the other founders had the same understanding.

3.

Since writers "generally employ the words which most directly and aptly express the ideas they intend to convey," the framers "must be understood to have employed words in their natural sense, and to have intended what they have said." Gibbons v. Ogden, 22 U.S. 1, 188 (1824). Thus, when we interpret the text,

[i]f two interpretations of the text appear to be equally natural uses of the language, then history, structure, and purpose will be the only ways to determine the meaning that the authors intended to place on the words. If two interpretations are possible, but one of them uses the language in more a natural or common way, then one would choose the more natural interpretation unless the evidence from structure, purpose, and history is strong enough to outweigh the impact of the greater naturalness of the usage 9

In the case of the recess appointments clause, we are asked to choose between a natural reading, which uses the key verb in its common sense ("happen" = "happen"), and a strained reading ("happen" = "happen to exist"). Even if the latter was a comparably natural use, the evidence from structure, purpose, and history are not, in my view, sufficient to coronate so awkward a reading. Indeed, they seem to point the other way.

The Evans majority counters with a half-hearted attempt to breathe ambiguity into the text:

On its face, the phrase is open to more than one interpretation. For example, the word "happen" can be defined as "befall" which has been defined as "happen to be." Therefore, the phrase's most accepted interpretation (upon which the President has relied and that we too accept) does not contradict the plain meaning rule.

387 F.3d, at 1226 (citations omitted; citing 6 Oxford English Dictionary 1096 (2d ed.1989) and 2 OED at 62). That dog won't hunt. "[T]he most frequent modern usage" of befall, says the OED, is in the sense of "to happen" or "occur" with an indirect object. 2 OED, at 62. True, OED gives "happen to be: to fall in one's way, happen to be, turn up, [or] occur" as an additional meaning of "befall," but it is at best secondary, and OED brands the usage obsolete. The single example supplied underscores that this is surely not the sense in which Article II uses it: "[the shepheard, seeing day appeare, His little Goats gan drive out of their stalls,] To feede abroad, where pasture best befalls." Ibid. (quoting Edmund Spenser, Virgil's Gnat (1591)). Moreover, although OED does say that "'happen' can be defined as 'befall,'" this usage too is branded as obsolete and consigned to the netherworld of dialect. See 6 OED, at 1096. Evans’ resort to an improbable archaism fails to lift the "exist" interpretation into the realm of the plausible, let alone showing that it is a natural or common usage of the language. As Judge Barkett's dissent points out, "[t]he text does not say that the President shall have the power to fill all vacancies that may exist during the Recess of the Senate. Instead, it uses the term "happen," whose plain meaning, now as it was in the eighteenth century, is "to take place; to occur, betide, befall." 387 F.3d, at 1229-30 (citing 6 OED, supra).

Moreover, as Michael Rappaport perceptively notes, the prevailing interpretation

reads the Clause to leave the term happen with no function, thereby violating the traditional canon of construction that says avoid interpretations that contrue words as surplusage. Had the Framers omitted the term happen from the Clause, it would have conveyed the exist meaning. With a minor change of word order, the Clause would have read: “The President shall have Power, during the recess of the Senate, to fill up all Vacancies by granting Commissions which shall expire at the End of their next Session.” In fact, this version of the Clause would have unambiguously conved the exist interpretation. Thus, if one believes that the Framers intended that the Clause have the exist meaning, it is extremely hard to understand why they included the term happen, which was not only unnecessary but also made the clause ambiguous 10

4.

In sum, the recess appointments clause's text is unambiguously clear. The "arise" interpretation is supported by "the more obvious reading of the words, canons of construction about not rendering words to be surplusage, and other constitutional clauses that use the same language. In fact, the textual argument is so strong that might question whether the exist interpretation is even consistent with the text."11

The lack of plausible textual ambiguity answers the Evans majority's argument that the clause's purpose is "to keep important offices filled and the government functioning," and that this purposes is frustrated by "interpreting the phrase to prohibit the President from filling a vacancy that comes into being on the last day of a Session but to empower the President to fill a vacancy that arises immediately thereafter (on the first day of a recess)." 387 F.3d, at 1227. Assume for a moment—but more on this anon—that this purposive analysis is correct. True, ambiguous constitutional language should be construed to effect rather than frustrate its purposes, see United States v. Classic, 313 U.S. 299, 316 (1941), but while a court should construe language "so as to carry out the purpose as best it can," it must "not give the words … a meaning they will not bear…." Hart & Sacks, The Legal Process 1169 (Eskridge & Frickey eds. 1994). That is exactly what Evans, Woodley, Allocco, etc. have done.

B. Problems with the cases' purposive analysis

Even if the text was ambiguous, cf. Crawford v. Washington, 541 U.S. 36, 42-43 (2004), the cases misunderstand the structural and purposive concerns in play. Recognizing the weakness of their position, defenders of textually problematic appointments generally argue that while "the literal language of the Constitution may prevent such recess appointments," its purpose "was to ensure the continuing functioning of the government."12 Yet this argument artificially boosts the clause's generality to an altitude whence competing concerns and balances fade from view.13

1.

It must be kept in mind, and appreciated as a backdrop to debate on the clause's meaning, that there was no shortage of anxiety about executive power among the founders. Elbridge Gerry famously fretted at the convention that the unitary executive was the "fœtus of monarchy"; Roger Sherman worried that an earlier draft of the appointments clause (authorizing the President to "appoint officers in all cases not otherwise provided for by this Constitution") gave too much power to "model the army" and thereby "set up an absolute Government"; and they weren't alone.14 Dean Chemerinsky probably overstates it in saying that "if anything is clear about the framers, it is that they deeply distrusted executive power," accepting it "only as a necessary evil." The Assault on the Constitution: Executive Power and the War on Terrorism, 40 U.C. Davis L. Rev. 1, 4 (2006). Nevertheless, for many of the framers, though not all,15 the President's power was a particularly acute manifestation of their anxiety over the centralization of power, whether in a government broadly or one pair of hands therein.16 Their challenge was to create an executive who would be sufficiently powerful to not be feeble when duty called, yet sufficiently bound-down to be a poor vehicle for tyranny should ambition call.17

How did these concerns play into the framing of the normal manner of appointing officers—the "regular" appointments clause, if you will? As Justice White put it:

The matter of the appointment of officers of the new Federal Government was repeatedly debated by the Framers, and the final formulation of the Clause arrived at only after the most careful debate and consideration of its place in the over-all design of government. The appointment power was a major building block fitted into the constitutional structure designed to avoid the accumulation or exercise of arbitrary power by the Federal Government.18

Thus, the framers divided the appointment power, making "[t]he Senate … a participant in the appointive process by virtue of its authority to refuse to confirm persons nominated to office by the President."19

The prevailing understanding of the recess appointments clause cannot easily be squared with the concerns that shaped the regular appointments clause. Nor, if that interpretation is correct, can the lack of any debate attending its adoption. “The Framers heatedly debated the general power of appointment. Delegates to the Convention voiced great distrust of the executive and expressed the need for checks and balances to counteract the power of the President.”20 Yet recess appointments "skirt[] the usual procedure for presidential appointments," allowing the President to "evad[e] the requirement that the Senate confirm federal officers" and to "unilaterally … fill vacancies in federal offices…."21 So why no hue and cry? The natural conclusion is that the prevailing understanding is wrong: the clause was uncontroversial to the framers because it had a more limited original meaning than we have allowed it. It "was approved with minimal debate because it was not intended to alter the balance of power."22

A proper understanding of the clause's office requires us to remember the world in which it was forged. “In adopting the Recess Appointments Clause, the Framers anticipated a Senate that would spend substantial amounts of time in recess,”23 and they were correct: “From the nation's founding until the mid-nineteenth century, Congress met for largely uninterrupted sessions separated by recesses of six to nine months. During these intersession recesses, positions in the federal government would become available as former officers retired, died, or otherwise left office. Because the President could not utilize the standard means of appointment when Senators were dispersed throughout the country and were unable to provide their advice and consent, he needed an alternative means of appointment so that vacancies in federal offices would not result in governmental paralysis."24

We have largely forgotten this world, so when we are presented with a clause attending to its peculiarities, it is tempting to think that if the clause does nothing more than this, it does not do very much—and so it must do more. But that is anachronistic and erroneous. I am convinced that the clause is about power, not authority. Suppose there was no recess appointment power and a vacancy arose with the Senate in recess. What would happen? The President would have to convene the Senate to obtain their advice and consent. He has the authority to do that, see Art. II § 3 cl. 2, so what problem can the recess appointment power address? Power. Whatever authority the President has on paper to call back the Senate from recess, in the world of the framers, his power to do so expeditiously was limited. See, e.g., David McCullogh, John Adams 20 (2001) (noting that it took Adams a fortnight to make the 400 mile trip to Philadelphia—and that to Abigail Adams, as to many Americans of the day, a city at such remove was "unimaginably distant"). An alternative was needed, and the recess appointments clause supplied it.

2.

Thus, the assumption entertained above (that the Eleventh Circuit called the purpose correctly) is revealed as fatally imprecise. The purpose of the recess appointments clause was to provide for the continued function of the government when the Senate was unable—not unwilling—to assemble and consider nominees. Cf. Barkett dissent, 387 F.3d, at 1232 (unable); ibid., and at 1234 (disabled). As Hamilton says in The Federalist, no. 67, the recess appointment was designed as an

auxiliary method of appointment, in cases to which the general method was inadequate. The ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, singly, to make temporary appointments "during the recess of the Senate, by granting commissions which shall expire at the end of their next session."

(Emphases omitted.) The power was not created as a loophole expanding the power of the President. It was designed to keep the government functioning in a scenario that is today all-but obsolete: a vacancy arising while the Senate—a participant in the ordinary appointment process—was out of town and unable to assemble. Michael Carrier correctly argues that clause has only a “limited purpose[],” counseling a narrow construction.25 Although Carrier’s focus is on a different shrink-or-grow question of interpretation (viz., whether the recess appointment power can be used during intrasession recesses or only intersession recesses), his logic has no less force when brought to bear on the instant question. He observes:

An expansive reading of the Recess Appointments Clause that allows Presidents to make recess appointments during intrasession recesses would contravene the Framers' intention to include the Senate in the appointment process. Although the Framers recognized that vacancies would often need to be filled during long absences of the Senate, it seems unlikely that they would have enacted without debate a clause that could upset the balance of powers that they had carefully orchestrated regarding the appointment power. Allowing the President to utilize the Recess Appointments Clause during all recesses would have dramatically shifted the balance of power toward the President by providing a broad loophole in the requirement of advice and consent. When both the President and Senate are available to act on nominations, the recess appointment power does not affect the balance of power between the branches.26

It is no different here.

3.

It can perhaps be said that the same concerns animating the recess appointments clause would also obtain if the Senate recesses without confirming nominees to pending vacancies. That isn't a convincing argument for construing the clause to allow such appointments, in my view.

The framers did magnificent work under incredibly difficult circumstances, but they were not omniscient. Our Constitution is not airtight. Any possible argument that it should be interpreted on the assumption that the framers foresaw and provided for any conceivable exigency that might arise under their design withered on the vine after the election of 1800 and the Twelfth Amendment.27 And at first glance, the clause "appears straightforward."28 Perhaps the framers, pushed for time and working in punishing conditions, simply did not consider the marginal possibility between the ordinary and auxiliary modes of appointment. Or, if they did think of it, perhaps they believed that personal courtesy and institutional comity would arrest the Senate from recessing with vacancies pending.29

If the framers noticed the problem, they do not seem to have solved it, and the Constitution should not be twisted to wring a solution from it. In construing statutes, we are aware that "no legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice." Rodriguez v. United States, 480 U.S. 522, 525-26 (1987) (per curiam). Even if we could be sure that the framers realized that their design left open a gap in the appointments process, it would still not follow that they would have plugged the gap at all costs. It does not follow from their readiness to accept a smaller loophole to avoid gaps that they would have accepted a much larger loophole to avoid them.30 Given their concern with unbridled executive power, it is entirely plausible that they would have accepted such an interstice, if only as one of the "necessary evils" to which Chemerinsky refers (see part III.B.1, supra). Whatever the case may be, we are left with the text that they wrote, and the text does not provide for recess appointments to vacancies that arose while the Senate was in session.

That is also my answer to the concerns of Woodley and Allocco that "[w]e cannot attribute to the Framers an intent to create such a potentially dangerous" or "manifestly undesirable" situation." 751 F.2d, at 1013; 305 F.2d, at 710. We need do no such thing. I can cheerfully agree that the framers probably didn't intend to leave such lacunae, but it isn't their intent that governs. It is the text they adopted. See, e.g., Antonin Scalia, A Matter of Interpretation 38 (1997); Frank Easterbrook, Textualism and the Dead Hand, 66 Geo. Wash. L. Rev. 1119, 1120 (1988). And are we to ignore even the plainest text simply because we can identify a situation that it would allow —not even necessarily a dangerous situation, mind you, nor even one merely potentially so, but one merely undesirable—that can be avoided by stretching the text? How far? On how little pretext?

C. The argument from practice

To be sure, as the cases cited in part II emphasize, Presidents have routinely claimed the power Obama is now exercising. Chancellor Kent tells us that Attorney Generals since at least 1823 have advised the President that he "has the rightful power to supply vacancies in office existing when the appointment is made during the recess of the Senate, though the vacancy did happen before the adjournment of the Senate" 1 James Kent, Commentaries on American Law 288 (14th ed. 1896) (emphasis in original). Farrow traces the claim as far back as the Monroe administration. 3 F., at 114. But I agree with Judge Hammond that while "the opinions of eminent publicists and jurists, whether official or otherwise, and whether technically authoritative on the courts or not, are entitled to the consideration of the courts in construing the constitution," "care should be used not to go beyond the limits of their just weight in that behalf."31 Moreover, while Woodley looks hopefully toward Marsh v. Chambers, for support, Marsh dealt with a practice with an "unambiguous and unbroken history of more than 200 years." 32 Whatever else might be said about the history of recess appointments, neither of those things can be.33

Some cases and academic commentaries have suggested that Congress has assented, also, which would presumably strengthen the appeal to practice. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-36 (1952) (Jackson, J., concurring). Woodley implies as much, claiming that "there is an unbroken acceptance of the President's use of the recess power to appoint federal judges by the three branches of government." 751 F.2d, at 1011. But Justice Story, in § 1553 of his Commentaries, tells us that the Senate protested the use of the power early and often. Likewise, Pyser observes that "tracing the legislative response to recess appointments reveals consistent dissatisfaction by the legislature and many attempts to derail the practice," and "[t]he 'unbroken acquiescence of the Senate' repeatedly cited by Attorney General and judicial opinions was actually broken for the first of many times in 1813."34

5 U.S.C. § 5503, for instance, appears on its face to manifest intent to discourage Presidential abuse of the power, and its legislative history confirms the supposition.35 The language came into the law in section 2 of the Army Appropriations Act of 1863, see 12 Stat. 642, 646 (1863), and it came into the bill as a floor amendment introduced by Senator Trumbull. The sponsor's intent, Trumbull told the Senate, was to give effect to the recess appointments clause by

prevent[ing] the payment of any officer who shall be appointed during the recess of the Senate, if the vacancy existed while the Senate was in session. I think that the nominee should then be sent to the Senate, and if he is rejected by the Senate, and the President thinks proper not to send any other nominee during the session, and he then appoints a person after the Senate has adjourned, that person should not be paid until the Senate has an oppotunity to act on him.

33 Cong. Globe 564-65 (1863). Senator Sherman argued that the Trumbull amendment merely restated the law as it then stood, a "repetition of a plan provision of the Constitution," but Trumbull rejoined that "some other persons"—perhaps the Attorney Generals cited by Farrow—"think he has that power." Ibid. Senator Harris, objecting to the amendment, foreshadowed the objections now being made: it wasn't the President's fault that the vacancies were unfilled; the President had sent the Senate nominations to these important posts, and through no fault of the President, the Senate had failed to act. But the Senate adopted the amendment anyway, passed the bill, and the House concurred without recorded comment. See id., at 565, 667, 680.

Improbably, Farrow, Allocco, and Evans cite this as evidence that the Senate agreed that President may make such appointments. 3 F., at 115; 305 F.2d, at 714-15; 387 F.3d, at 1226 n.11; cf. Evans, at 1226 (suggesting, more plausibly, that Congress has "acquiesce[d]"). Some academics have picked up the theme. Edward Hartnett, en route to concluding that "the Recess Appointments Clause should be interpreted to permit the filling of vacancies that first arose before the recess of the Senate but continued to 'happen' in the recess," shares this view, suggesting that "Congress recognized and acquiesced in such recess appointments but guarded against abuse by putting the appointee at risk of serving without pay if the Senate did not ultimately confirm him."36 Similarly, Patrick Hein argues that Congress "has chosen to limit rather than attempt to abolish presidential recess appointment power to fill vacancies that arose during a Senate session," equating "[t]his kind of collateral opposition" with "an implicit acquiescence to the constitutionality of the practice."37

Yet these arguments are utter nonsense. They are at odds with the plain import of the Trumbull amendment's text, and are flatly contradicted by its legislative history. As Pyser puts it, "Congress attempted to limit the use of the recess appointment power by prohibiting payment to recess appointees who were appointed to vacancies that existed prior to a recess. ... By prohibiting payment to recess appointees Congress implicitly admits the existence of such appointments. This acknowledgment, however, is not equivalent to a recognition of constitutionality. Acceptance of constitutionality cannot be extrapolated from a congressional decision to operate within the constraints of current constitutional interpretation."38 What, precisely, would Hartnett, Hein, and their fellow-travellers have the Senate do? It cannot adjudicate the question and order the President to stop. Should it pass masturbatory “sense of the Senate” resolutions?39 Should it file suit? Perhaps, see Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008), but even Hein concedes the difficulties and uncertainties of that approach.40 The reality staring us in the face is that the Senate has not "acquiesced"—it has taken the practical steps available to it to curb the practice.

In sum, our ability to infer Congressional approval of the practice is limited if not defeated. This supplies an adequate answer to the "unbroken acquiescence of the senate" cited by Farrow, and distinguishes the practice passed on by Justice Frankfurter's Youngstown concurrence, cited by Allocco.

IV.

What is the alternative? The best approach is to read the clause as if it means what it says. When recesses happen during a Senate recess—and only then—the President may make a recess appointment. That is the approach urged by Michael Rappaport. His article The Original Meaning of the Recess Appointments Clause, 52 U.C.L.A. L. Rev. 1487 (2005), is comprehensive and highly instructive (which is why my earlier posts on this topic did little more than cite it), and I urge you to read it all. Having done so, and since I've quoted from it a few times already (and have touched many of the same bases in my own analysis above), I'll forego lengthy quotation. To summarize, Rappaport closely examined the original meaning of the clause and concluded that it "permits recess appointments to be made only for an office that becomes vacant during the recess when the recess appointment is to be made."41 Thus: "If an office becomes vacant while the Senate is in session, or if it becomes vacant during an earlier recess and remains vacant during the Senate session, the President is not permitted to make a recess appointment to that office. In essence, if an office is vacant while the Senate is in session, the Constitution expects the President to make an advice and consent appointment at that time."42 The result of our failure to enforce this meaning is that "the President’s recess appointment power has been greatly expanded beyond its original limits."43

He's right. The recess appointments clause authorizes precisely and peculiarly what it purports to authorize: temporary Presidential appointments to fill vacancies that may happen while the Senate is out of session. And that is how it ought to be construed. Why are we so afraid of this? Why is it, as the Ninth Circuit branded it in Woodley, an absurd result? We might be leary of a return to the original meaning if doing so would cause significant disruption; as Justice Scalia said at his confirmation hearings, if someone ran in with proof that Marbury v. Madison was wrongly-decided, for example, we would not raze the entire structure of judicial review and start from scratch. But in the case of the recess appointments clause, Rappaport points out, "returning to the original meaning would be unlikely to create serious dislocations. Under the original meaning, the President could use his constitutional recess appointment authority and statutory acting appointment authority to fill the vacancies that require immediate attention. Especially in a world with relatively short recesses"—a fortiori in a world where (unlike that of the framers, see part III.B.1, supra) Congress can be recalled in a matter of hours—"the original meaning would require at most some adjustments to a couple of minor statutes relating to acting appointments."44

As Brian Kalt observes, "the solution to the recess-appointment problem … is fewer vacancies": "Instead of letting controversial nominations last until a recess, teeing up controversial recess appointments, the Senate can just vote on them."45 It's an idea just crazy enough to work.

* * *

"The Recess Appointments Clause was approved with minimal debate because it was not intended to alter the balance of power. The Clause was to operate during the long intersession recesses of the early Congress and not during those times when the Senate was available. 'That the Framers intended to give the President such a loophole to escape the normal system of checks and balances in the appointment process seems unlikely in light of the minimal impact the Framers intended the clause to have on the system of checks and balances.'"46

That "normal system"—the regular appointments clause—is not simply a matter of etiquette or protocol; it is an integral component of the separation of powers.47 The framers designed it to be comprehensive. Ordinarily, all federal officeholders would be appointed via one of two methods involving Congressional approval: particular (by Presidential nomination and Senate consent), or general and a priori, for inferior officers only (by statutory authorization).48 By splitting the selection of officers between the President and the Senate, the framers ensured that the former's appointment power was not "left unguarded," a choice "serv[ing] both to curb executive abuses of the appointment power and 'to promote a judicious choice of [persons] for filling the offices of the union,'"49

But only while Congress is in Washington, we are asked to believe. By contrast, simply by waiting until Congress—whose ambitions the framers had rested against the President as the principal structural restraint on his ambitions50—enters recess, where the framers anticipated it would spend much of its life, see part III.B, supra, allows the President to fill any and all vacancies as he or she sees fit. So holds the prevailing understanding of the recess appointments clause. Although the recess appointments clause carves out only a limited exception to the rule about appointments, we today read this limited exception as conferring a power so broad that a President "can make a recess appointment to any office and thereby bypass the Senate so long as he is willing to wait for one of the seven recesses that typically occur during the year."51 That is not what the text says. It is not what the text means. It is not what the text was originally understood to mean. And so it is not the manner in which the text should be construed.

As Justice Frankfurter said in Youngstown, "[t]he accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority." 343 U.S., at 594. Perhaps it is quixotic to hope that we can unweave what has been woven, cf. Woodley, 751 F.2d, at 1012, and enforce the original meaning of this clause—but it is the mast to which my colors are nailed.

Applied:
In re Berwick (7/7/2010)
In re Cole (12/31/2010)
In re Cordray (1/4/2012)

  1. 1. Pyser, Recess Appointments to the Federal Judiciary, 8 U. Pa. J. Const. L. 61, 100-101 (2006).
  2. 2. Wirth v. S.S. Acadia Forest, 537 F.2d 1272 n.10 (5th Cir. 1976) (emphasis added).
  3. 3. Pyser, supra note 1, at 97.
  4. 4. Cf. In re Yancey, 28 F. 445, 451-52 (C.C.W.D.Tenn. 1886), which criticized Farrow for

    giv[ing] a force of authoritative decision to the opinions of the attorneys general, … [despite] a tendency to thereby perpetuate an abuse of executive power; for, if the courts recognize executive decision and practice as authoritative on them in construing the constitution, they may abdicate one of their most important duties, and loosen their power to check all violations of the constitution by any department of the government, legislative, executive, or judicial.

  5. 5. Michael Stokes Paulsen, The War Power, 33 Harv. J. of L. & P.P. 114, 116 n.5 (2010); see also Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 491-2 (1939) (Frankfurter, J., concurring)). The Supreme Court's most recent statement of this principle, see District of Columbia v. Heller, 128 S.Ct. 2783, 2788 (2008) (stating that the Constitution "was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning" and that "[n]ormal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation" (citations, and internal quotation marks omitted) (quoting United States v. Sprague, 282 U.S. 716, 731 (1931))), is serviceable as a general matter, but its tenor is unduly populist in its puzzling exclusion of technical vocabulary. Terms of art should of course be parsed as such where they are found, see, e.g., Lawrence Solum, Originalism and the Natural Born Citizen Clause, 107 Mich. L. Rev. First Impressions 22 (2008), although it may be debatable in specific instances whether a given phrase is a term of art or should instead be parsed as natural language.
  6. 6. See, e.g., Johnson's Dictionary of the English Language in Miniature 108 (1823) (defining "happen" as "to come to pass"); Steven Jones, Sheridan's General Pronouncing and Explanatory Dictionary of the English Language (9th ed. 1804) (same); 1 Thomas Sheridan, Complete Dictionary of the English Language (1790) (same); Thomas Sheridan, General Dictionary of the English Language (1780) (same); 1 Samuel Johnson, Dictionary of the English Language (1773) (same); cf. Joseph Worcester & John Walker, Universal and Critical Dictionary of the English Language 331 (1854) ("to take place; to occur").
  7. 7. 2 Senate Journal 53 (3d Cong. 1794).
  8. 8. See id., at 57; 4 Annals of Congress 77-78 (3d Cong. 1794).
  9. 9. Michael Rappaport, The Original Meaning of the Recess Appointments Clause, 52 U.C.L.A. L. Rev. 1487, 1494 (2005) (footnote omitted).
  10. 10. Id., at 1503 (footnotes omitted).
  11. 11. Id., at 1506.
  12. 12. Pyser, supra note 1, at 69; see, e.g., 1 Op. Att’y Gen. 631 (1823).
  13. 13. See generally Frank Easterbrook, Abstraction and Authority, 59 U. Chi. L. Rev. 349 (1992), and particularly, Easterbrook, What Does Legislative History Tell Us?, 66 Chi. Kent L. Rev. 441, 449 (1992) ("Shifting the level of generality—emphasizing the anticipated effects of a rule while slighting the rule itself—is a method of liberating judges," and other legal actors, "from rules").
  14. 14. See, e.g., Catherine Drinker Bowen, Miracle at Philadelphia 55-62 (1986); Antifederalist no. 74 ("Philadelphiensis"); Cong. Globe Supp. 460 (40th Cong. 1868) ("the framers of the Constitution knew well the seductive, grasping, and aggressive nature of executive power"); Weiss v. United States, 510 U.S. 163, 187 (1994) (Souter, J., concurring) (while particularly concerned with Congressional overreach, "the Framers also expressed concern over the threat of expanding Presidential power, including specifically in the context of appointments"); James Bond, The Art of Judging 29 (1987); James Pfiffner, Power Play 75-76 (2008); David Gray Adler, Protecting the Nation at the Expense of Individuals?, 12 UCLA J. Int'l L. & For. Aff. 75, 91-92, 89 (2007).
  15. 15. See, e.g., Clinton Rossiter, 1787: The Grand Convention 223 (1966); Marc Landy & Sidney Milkis, American Government 105 (2008).
  16. 16. See, e.g., Patrick Garry, The Unannounced Revolution: How the Court Has Indirectly Effected a Shift in the Separation of Powers, 57 Ala. L. Rev. 689, 696 (2006). "Acute" because of the executive's natural relationship to the military, see, e.g., Christopher Ligatti, Note: The Legality of American Military Troops Engaging in Domestic Law Enforcement in the Event of a Major Terrorist Attack, 41 New Eng. L. Rev. 199, 215-16 (2006).
  17. 17. Compare, e.g., Adler, supra note 14, at 91-92, with, e.g., John Baker, Boumediene and Medellin: separation of powers in foreign and military affairs, 26 T.M. Cooley L. Rev. 1, 17-18 (2009) ("The Framers of the Constitution insisted on a strong and unitary presidency because '[a] feeble executive implies a feeble execution of the government'" (alteration in original) (quoting The Federalist, no. 70)).
  18. 18. Buckley v. Valeo, 424 U.S. 1, 271-72 (1976) (opinion of White, J.).
  19. 19. Id., at 121 (per curiam opinion); see generally Weiss, supra, 510 U.S., at 183-86 (Souter, J., concurring).
  20. 20. Michael Carrier, When Is the Senate in Recess for Purposes of the Recess Appointments Clause?, 92 Mich. L. Rev. 2204, 2225 (1994) (footnote omitted).
  21. 21. Id., at, 2204-6.
  22. 22. Pyser, supra note 1, at 91.
  23. 23. Carrier, supra, at 2226; Rappaport, supra note 9, at 1498 ("When the Constitution was written, intersession recesses regularly lasted between six and nine months") and 1541 ("Wirt’s basic argument is that while the text of the Clause supports the arise interpretation, structure and purpose favor the exist interpretation and outweigh the textual evidence" (footnote omitted)).
  24. 24. Carrier, at 2210 (footnote omitted); Pyser, supra, at 64.
  25. 25. Carrier, at 2225.
  26. 26. Id., at 2227 (footnote omitted).
  27. 27. See, e.g., Paul Finkelman, Thomas Jefferson, Original Intent, and the Shaping of American Law, 62 N.Y.U. Ann. Surv. Am. L. 45, 49-51 (2006) (discussing the unamended Constitution’s “truly odd method for electing the nation's chief executive” and the failed assumptions underpinning it).
  28. 28. Patrick Hein, In Defense of Broad Recess Appointment Power, 96 Calif. L. Rev. 235, 237 (2008).
  29. 29. See Brian Kalt, Keeping Recess Appointments in their Place, 103 Nw. U. L. Rev. Colloquy 292 n.14 (2009).
  30. 30. See generally Rappaport, supra note 9, at 1496-98 (discussing these tradeoffs).
  31. 31. Yancey, supra, 28 F., at 452.
  32. 32. 463 U.S. 783, 792 (1983) (emphases added); see also the Woodley panel opinion, supra, 726 F.2d, at 1338 n.5.
  33. 33. See, e.g., Rappaport, supra, at 1518-25 (discussing early interpretations); Pyser, supra note 1, at 70 (Attorney General Mason broke the practice in 1845, advocating the "exist" interpretation).
  34. 34. Pyser, supra note 1, at 77-79.
  35. 35. Cf. Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson (Sup. Ct. March 30, 2010) (Scalia, J., concurring) (noting that legislative history cannot be used to contradict the enacted text).
  36. 36. Hartnett, Jurocracy and Distrust, 26 Card. L. Rev. 377, 405-6 (2005).
  37. 37. Hein, supra note 28, at 244; see also id., at 247.
  38. 38. Pyser, supra, at 78-79; cf. Barkett dissent, 387 F.3d, at 1236.
  39. 39. Cf. Carrier, supra note 20, at 2231-32.
  40. 40. Hein, supra, at 249-51.
  41. 41. Rappaport, supra note 9, at 1490.
  42. 42. Ibid.
  43. 43. Id., at 1575.
  44. 44. Id., at 1577; cf. Kalt, supra note 29, at 292 ("The Senate spends relatively little time in recess now, so comparatively few vacancies arise during recesses, and most of those vacancies could wait to be filled until the Senate returns"); Barkett disssent, 387 F.3d, at 1235:

    on a purely practical note, the Allocco and Woodley argument about the dangers of governmental paralysis is more of a phantom than anything else, even in the context of our own times. The vacation of an office vital to the conduct of national security two days before the Senate goes on recess is a useful example. Despite the initial appeal of the Allocco and Woodley argument in this context, a few moments of reasoned deliberation will show that adhering to the plain meaning and purpose of the Recess Appointments Clause does not threaten in any way the President's ability to successfully manage the government during a security crisis. Common sense and practical experience tell us that the President can and does call upon whichever individuals - acting officials, deputy directors, etc. - he needs to assist him in such a situation. A formal appointment is of little importance at such a time.

    In contrast, there is a real, concrete concern that the understanding of the recess appointment power embraced by the majority will allow the President to repeatedly bypass the role the Framers intended the Senate to play in reviewing presidential nominees. Thus, for the reasons discussed above, the reasoning of Allocco and Woodley not only fails to adhere to the text of the Constitution, as Allocco itself acknowledged, but also makes the wrong tradeoff between executive and legislative authority, a tradeoff that comports neither with the purpose of the Recess Appointments Clause nor with the structure of the Constitution.

    (Footnote omitted).

  45. 45. Kalt, supra, at 296.
  46. 46. Pyser, supra note 1, at 91 (quoting Carrier, supra note 20, at 2227); see also Thomas Curtis, Note: Recess Appointments to Article III Courts: The Use of Historical Practice in Constitutional Interpretation, 84 Colum. L. Rev. 1758, 1768 (1984).
  47. 47. See Buckley, supra, 424 U.S. at 124-25; Edmond v. United States, 520 U.S. 651, 659 (1997).
  48. 48. See U.S. Cont., Art. II, § 2, cl. 2; Buckley, at 125-26, and United States v. Germaine, 99 U.S. 508, 510 (1879), cited therein; Weiss, supra, 510 U.S., at 169. The realm of the latter, as Richard Henry Lee foresaw in The Antifederalist nos. 76-77, can be expanded or contracted by Congress "as experience, the best instructor, shall direct…."
  49. 49. Edmond, supra, at 659 (citations omitted; second alteration in original) (quoting The Federalist, no. 76).
  50. 50. See Buckley, at 122-23 (quoting The Federalist, no. 51).
  51. 51. Rappaport, supra note 9, at 1490.

Nicely done, Simon. You make a solid case here, and

your ability to put aside partisan bias is beyond commendable. As to the issue at hand, it seems that the only time the recess power is used anymore today, is to fill up controversial vacancies, that aren't exactly emergencies, and as you clearly point outt-this started long before President Obama.

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