Who Cares What the Framers Thought About Recess Appointments?

Eric Posner weighs in.
Jan. 8 2014 7:32 AM

Forget the Framers

The Supreme Court should not rely on James Madison in deciding how much power the president has to make recess appointments.

James Madison
Whether James Madison attempted to appoint Theodore Gaillard to a vacant judgeship shouldn't influence how much power the president has to make recess appointments.

Painting by Gilbert Stuart via National Gallery of Art

Next week, the Supreme Court will hear arguments in a case that pits President Obama against Congress in the struggle over control of the federal bureaucracy. National Labor Relations Board v. Noel Canning is about the president’s power to make appointments when the Senate is in recess. It involves an obscure provision of the Constitution, a clumsy appeals court opinion that upset the delicate balance of power between the other two branches, and the question of whether James Madison attempted to appoint a certain Theodore Gaillard to a vacant judgeship on April 13, 1813. This last question matters to scholars who believe that the original meaning of the Constitution—rather than tradition and common sense—should determine the outcome. But the case illustrates once again the folly of this view.

On Jan. 4, 2012, while the Senate was on a 20-day break, President Obama appointed three people to vacant positions on the National Labor Relations Board. Normally, these appointments would require the consent of the Senate. But the president argued that they were valid under a clause of the Constitution that authorizes him to “fill up all Vacancies that may happen during the Recess of the Senate.”

Noel Canning, a company trying to escape an adverse decision by the NLRB, argues that the appointments did not take place during a “Recess,” because a recess occurs only between sessions of the Senate, while the 20-day break took place after the 2012 session officially started on Jan. 3. Moreover, the appointments filled vacancies that “happened” (in the sense of “arose”) before the recess, while the clause authorizes the president to fill only vacancies that “happened” (arose) during the recess. The point of the clause was to allow the president to make appointments needed to keep the government operating while Congress was away. If a vacancy opens up while the Senate was in session, the president should make the appointment then rather than wait for the recess.

Advertisement

The government responds that “Recess” encompasses any break the Senate takes for more than a few days, whenever it occurs. If the president needs to make appointments while Congress is away, it shouldn’t matter whether Congress is away between sessions or during a session. Moreover, “happen” must mean (broadly) exist, not (narrowly) arise. Otherwise, a vacancy that opens up the day before a recess would be unfillable until the Senate returns. The NLRB appointments were valid because they took place during a break long enough to be a recess, and the vacancies existed at the time of that break.

For decades, presidents of both parties have made recess appointments like the ones Obama made to the NLRB. According to the government, at least 14 presidents have appointed more than 600 civilian officials (and many more military officials) during intrasession breaks, and at least 35 presidents have made an uncounted number of recess appointments to fill vacancies that began before the recess. The Senate has acquiesced in nearly all these appointments; in a few cases, it fought back, and sometimes the branches compromised. Why did the Senate usually give in? Most likely because senators themselves understood that their slow, rule-bound body often cannot confirm nominees in a timely fashion, and if it can’t, then government programs grind to a halt. The Supreme Court has never expressed a view on the matter.

So the court can resolve this case by holding that President Obama has merely continued a practice of his predecessors, one that is consistent with the text of the Constitution. Yet a group of scholars, pundits, and politicians argue that the decades-long practice is unconstitutional because it violates the original understanding of the Constitution.

Recent historical research, notably a 2005 article by University of San Diego law professor Michael Rappaport, provides evidence that the founders understood the recess clause narrowly. Rappaport painstakingly examines the recess appointments made by the first few presidents, and finds that nearly all of them involved vacancies that opened up during a recess between sessions of Congress, at least where the evidence is clear. Some early executive-branch opinions also expressed this understanding.

The striking thing about the originalist claim is that it throws to the winds a longstanding constitutional tradition, and disregards policy arguments for giving the president a way to counteract senatorial inertia and obstruction, for the sake of—what, exactly? The lawyers David Rivkin and Lee Casey argue in the Wall Street Journal that the founders divided the appointments power between the president and the Senate in order to safeguard liberty and prevent the president from appointing bad people. Maybe so. But it is hard to maintain that President Obama (or any other president) has used the recess appointment power to cut out the Senate. During the 111th Congress (2009–10), for example, President Obama appointed 843 top-level executive branch officials with Senate consent. He has appointed 218 judges, all with Senate consent, over the last five years. Also during these five years, he made only 32 recess appointments, all of executive branch officials—a minuscule fraction of the total.

The originalists want this case to turn on the outcome of antiquarian research on late-18th-century language and political practice. They want us to swim through an ocean of writings from the time for uses of “happen” and “Recess,” and pore over musty records of the appointments of Washington, Adams, Jefferson, and Madison. Much ink is spilled over such profound questions as: On what date did the first Postmaster General or second Chief Coiner of the U.S. Mint resign? Madison’s attempt to appoint Gaillard to the bench in April 1813, to fill a vacancy that predated the relevant congressional recess, shows that at least one founder may have thought he had this power—if, that is, Madison thought he was acting constitutionally. A conscientious originalist should also take into account that the recess appointment issue was never high on the founders’ agenda, that they may have used broad language to duck an elusive policy question, and that the early presidents and their advisers, who were politically vulnerable, may have cautiously interpreted the recess appointments clause to avoid a fight with Congress.

And now consider what the originalist must ignore: the huge growth of the country, and the vastly expanded federal bureaucracy that allows the national government to be much more involved in the regulation of everyday life. In 1789, the president made do with a single part-time attorney general. Today, the Justice Department employs more than 100,000 people. The founders did not anticipate the party system, and could not foresee that opportunities for conflict between the president and Senate would multiply infinitely. They surely did not foresee all the opportunities for obstruction afforded to a Senate with 100 members (compared with 26 at the founding) that often operates by consensus, or supermajority rule.

Weighing in on the other side of the ledger are other modern-day realities. Planes, telephones, and the Internet would make it easy for the president to call Congress back into session or reach members during a recess, so maybe the recess appointment power is not as important as it once was. Also, the Senate has established its own rules for recess appointments—how should that factor in? Noel Canning makes a reasonable argument that the Senate was within its rights to block intrasessions recess appointments by gaveling in “pro forma” (phony) sessions during the 20-day break. But this argument, too, is foreclosed to the originalists. Is the right way to resolve a 21st-century controversy to place the minutiae of the 1790s under a magnifying glass and ignore everything that came later? Whether you come down for or against Obama, surely the answer is no.

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.