The folly of originalism: Judges should stop parsing every word the founders wrote.

Hey, Judges, Stop Parsing Every Word the Founders Wrote

Hey, Judges, Stop Parsing Every Word the Founders Wrote

Eric Posner weighs in.
March 19 2013 3:41 PM

Indefinite Articles

Dear judges: Stop trying to figure out what the founders meant by every little word. You can’t, and it doesn’t matter.

President Barack Obama pauses as he speaks at Argonne National Laboratory in Argonne, Ill., March 15, 2013.
The Obama administration has argued that the Senate cannot pretend it is in session when it really isn’t.

Photo by Pablo Martinez Monsivais/AP

Last week, the Obama administration asked the Supreme Court to review a lower court ruling that several so-called recess appointments made by the president were invalid. The court’s opinion is a case study of bad legal reasoning, and the Supreme Court is likely to reverse the decision. The opinion shows the increasing and increasingly malign influence of a theory of legal interpretation known as originalism. Bear with me through the legal minutiae, and you’ll discover how a major conflict between the president and Congress can turn on the meaning of the word the.

The case arose after the National Labor Relations Board held that a firm called Noel Canning violated the law during collective bargaining negotiations with the Teamsters. The court ruled that the holding was invalid because the NLRB lacked a quorum of three members. Five people sit on the NLRB, but three of them had been appointed by President Obama in violation of the appointments clause of the U.S. Constitution.

Generally speaking, the Constitution provides that the president may appoint high-level officials only with the consent of the Senate. However, the recess appointments clause provides that when Congress is in recess—that is, is not meeting—the president may fill a vacancy without obtaining consent, although the appointee may remain in office only until the end of the next session, which usually means a year or two. (Normally, an appointee will serve a longer term—for example, four years, or at the president’s pleasure.)


Members of Congress, like kindergartners, get recesses. But unlike kindergartners, they get to decide when these recesses occur. For most of its history Congress has met in one session per year, with each session starting in January (or sometimes later in the winter) and ending in December (or sometimes earlier in the fall). The period between the end of one session and the beginning of the next is called the intersession recess. Congress also sometimes adjourns in the middle of a session. These breaks, called intrasession recesses, may be as short as an hour for juice and cookies or as long as weeks while members vacation or campaign. Throughout history, presidents have made appointments during intersession recesses, and since the 1940s they have also frequently made appointments during intrasession recesses longer than three days or so.

Like his predecessors, Obama has made recess appointments. In 2011, the Republican-led House blocked the Senate from formally ending its 2011 session and forced it to hold a pro forma session every three days from Dec. 20, 2011, to Jan. 23, 2012. A pro forma session is one in which no business is conducted—a senator just shows up and bangs the gavel. When the 2012 session began on Jan. 3, 2012, the 2011 session automatically expired, with the result that no intersession recess took place—there was literally no time between the two sessions—and hence the president could not make an intersession recess appointment. Meanwhile, because the pro forma meetings kept the intrasession recesses shorter than three days, the president could not make an intrasession recess appointment without violating tradition.

Obama nonetheless made several recess appointments on Jan. 4, 2012—three to the NLRB, and also the head of the Consumer Financial Protection Bureau, a new agency created by Congress to protect consumers from abusive credit practices. The Obama administration argued that the Senate cannot pretend it is in session when it really isn’t in session. On Jan. 4, 2012, it was in fact in recess—an intrasession recess to be sure, because the new session had begun the day before, but if one ignores the pro forma meetings, an intrasession recess long enough to justify an appointment.

The Constitution’s recess appointments clause provides that: “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.”

To get at the original understanding of the text, the court started with the language, which normally trumps other evidence about the founders’ intentions. The court first argued that the language refers to the recess, not a recess. Thus, the founders could have had only one particular recess in mind, and that recess must be the one that takes place between the two sessions. Because Congress chose not to leave a gap between the 2011 session and the 2012 session, the recess could not have taken place.