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01/17/2012

Custom and Recess Appointments
Michael Ramsey

At SCOTUSBlog, Lyle Denniston reports on a developing court challenge to the President’s recent recess appointments.  Meanwhile, Michael McConnell comments on the Office of Legal Counsel opinion supporting the appointments. He suggests agreement with Mike Rappaport’s view of the original meaning: “courts,” he says, “might rule that the Recess Appointments Clause applies only when a vacancy ‘happens’ during a recess, as the text of Art. II, § 2, cl. 3, says, and that ‘the recess’ of the Senate occurs only between sessions, and not (as here) in the midst of a session” – but beyond that he finds the recent appointments especially problematic. 

I haven’t weighed in on the debate over the original meaning of recess appoinments because that’s Mike Rappaport’s issue and I fully agree with him.  But the main modern defense of recess appointments, I would think, is based on constitutional custom rather than original meaning.  It happens that I’m presenting a paper today on constitutional custom, so I have a couple of comments on that part of the question.

Constitutional custom, in the sense that Justice Frankfurter expressed it (“a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned”) is an interesting candidate as an alternative to (or, at least, a supplement to) originalism that doesn’t get a lot of attention.  It doesn’t fit within the conventional dichotomy of originalism-versus-living-constitutionalism; it avoids some of the leading defects of living constitutionalism while offering some mitigation of the dead hand and impracticality problems that pure originalism faces. 

The paper I’m developing, though, argues that pure custom-based arguments have fairly limited scope because they work only if there’s substantial identity between the past practice and the current practice.  Many (perhaps most) arguments that purport to rely on custom are actually arguments for extensions of custom: that is, they say that because a given practice has been accepted in the past, that should validate a different current practice that is (arguably) similar or analogous.  But arguments for extensions of custom depend on a lot more than custom alone: they depend on the value judgment that the current practice is (as a moral or policy matter) sufficiently analogous to the past practice that the two should be treated the same.

The recess appointments issue is an example.  Let’s assume Mike Rappaport is right (as I think he is) that under the original meaning (a) recess appointments could be made only if the vacancy first arose (“happen[ed]”) during the recess; and (b) “recess” referred only to intersession recesses, not intrasession recesses.  The recent appointments fail both conditions.  But (as I understand the history) so do a lot of other Presidents’ recess appointments over a long period of time.  I’m not sure how strongly these appointments were protested, but it appears that the appointees in general exercised the powers of their positions without much continuing opposition.  So there seems a plausible case for a Frankfurterian “systematic, unbroken” practice.  Whether that counts as reason to depart from the Constitution’s text depends on one’s view of custom arguments, but there are at least some claims based on stability, settled expectations, implicit consent and practical wisdom that support Frankfurter’s view (both in the abstract and as applied to the ordinary course of recess appointments).

But the recent recess appointments are a step further, as they depend on the position that the Senate is in recess when the Senate says it’s not.  Whatever one thinks of that position, it can’t be defended on the basis of custom.  Again as I understand the history, there isn’t a practice of making recess appointments when the Senate purports still to be in session (even if it is acting to some extent like it’s in recess).  There’s a significant policy difference between a situation where the branches agree on the Senate’s status and a situation where they don’t.  (Not to mention several other difficulties that arise from the President’s position, as Professor McConnell notes).  To be sure, reasonable people might conclude that the two situations should be treated the same – but that is a modern value judgment; it is not a conclusion that can be anchored in any actual custom.  The underpinnings of custom arguments – stability, consent, etc. – don’t apply where there are arguable moral or policy differences between the past practice and the present practice.

As a result, what we see in the current recess appointments opinion, properly understood, is not an argument based on custom but an argument for the extension of custom to new circumstances.  Or, put another way, it’s a version of David Strauss’ constitutional common law (explained well in this book).  An originalism-plus-custom position should reject it, because custom-based departures from the text shouldn’t go beyond the actual longstanding practices themselves.