Supreme Court Breakfast Table

Justice Breyer Makes Justice Scalia Very, Very Angry Over Recess Appointments
An email conversation about the news of the day.
June 26 2014 12:54 PM

Supreme Court Breakfast Table

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Justice Breyer makes Justice Scalia very, very angry over recess appointments.

President Obama.
And yet President Obama still loses.

Photo by Win McNamee/Getty Images

Like you, Dahlia, I don’t think there is much point in trying to imagine how the founders would have applied the Fourth Amendment to cellphones. But I do like to imagine how the founders’ correspondence might have come down to us if they had communicated by text message:

Jefferson: Take up ur pen, select the most striking heresies, and cut him 2 pieces in the face of the public.
Madison: LOL.
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In today’s first opinion, the founders play a more central role but ultimately fail to carry the day. In NLRB v. Noel Canning, the court, in a majority opinion written by Justice Stephen Breyer, invalidated several recess appointments made by President Obama. Breyer bases his decision largely on historical practice since the founding, even while making due obeisance to the founders along the way. Justice Antonin Scalia, in his concurrence, blows a gasket.*

Noel Canning is an intricate case that does not lend itself to Breakfast Table–style banter, so I want to simplify a number of issues so we can get to the meatier substance. The Constitution gives the president the power of appointment, for federal judges and cabinet members and other officials, and normally he must obtain the consent of the Senate for his choices. The requirement of senatorial approval was clearly intended to limit the president’s power to stock the executive branch with cronies. As Alexander Hamilton wrote on his Facebook page, senatorial approval places “an excellent check upon a spirit of favoritism in the President.” However, the founders worried that the government might grind to a halt if the president needed to make appointments while the Senate was on recess—which could go on for months—and so they provided a safety valve in the form of the Recess Appointments Clause. Here’s what it says:

The President shall have Power 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.

The most natural reading—and here I agree with Justice Scalia—is that the president may make appointments only when the vacancy opens up during the recess (not if it predates the recess) and only for recesses that take place between sessions (rather than recesses or breaks taken during sessions). I suspect that Justice Breyer agrees as well, but he argues that the actual language of the clause is ambiguous, or at least susceptible to a broader interpretation that allows the president to make appointments to vacancies that predate recesses, and to make appointments during intra-session recesses. (You can find the grisly details in two earlier Slate pieces I wrote.)

That gives Breyer license to fall back on the history of how the recess appointment power has played out since the founding. James Madison himself observed, in a text message, that many constitutional provisions are ambiguous, and, OMG, “it might require a regular course of practice 2 liquidate & settle the meaning of some of them.” And this sends Breyer off to the races. The bulk of his opinion (and a lengthy appendix) describes the dozens of instances, over the decades, in which the president appointed all kinds of people during recesses, both midsession and between sessions.

And yet, President Obama loses. The court holds that the Senate can block recess appointments by voting to hold “pro forma” (fake) sessions at periodic intervals while it is (really) in recess. That’s what happened here. The upshot is that the president enjoys broad power to make appointments while the Senate is in recess, unless the Senate takes the trouble to block the power. Which it may not always do, especially if the president enjoys significant support in the Senate. But which it did in January 2012, during the recess at issue in this case, when Minority Leader Mitch McConnell gaveled the Senate in and out of session.

What are we to make of all this? Practically, the decision is probably of little significance. The president’s use of the recess appointments power has always been constrained by his fear of upsetting the Senate, including his allies in the Senate, who want their cronies in office, not the president’s. Breyer’s Solomonic holding—giving the president vast power to make recess appointments but also the Senate vast power to block them—will not affect the balance of power between the president and the Senate.

For originalism—the idea, championed by Justice Scalia, that the court should enforce the founding-era interpretation of the Constitution, and only that understanding—this case represents a significant defeat. Justice Breyer gives a nod to the founders, but he insists over and over that the court must pay attention to how the Constitution evolves. Originalists hate that word. Justice Scalia argues that Breyer’s is an “adverse possession” theory of constitutional interpretation, a complicated law joke that refers to an old doctrine that a trespasser can lawfully obtain ownership of a piece of land by possessing it conspicuously for a long period of time.

But the adverse possession doctrine is part of our law for a good reason: When someone doesn’t responsibly exercise power, and acquiesces to someone else’s use of it, he can (and should) lose it. And that is the story of our Congress.

There’s a lot more to say about this opinion, especially the inflated rhetoric about the relationship between freedom and government structure, which I hope to return to in a later post.

*Correction, June 26, 2014: This piece originally called Justice Scalia's opinion a dissent. (Return.)

Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and Climate Change Justice. Follow him on Twitter.