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05/20/2013

Originalism, Recess Appointments, and The SG’s Noel Canning Cert Petition
Mike Rappaport

As many readers know, the Solicitor General’s Office has sought cert in the Noel Canning Recess Appointments case. Solicitor General briefs are supposed to be the best of the best, but in reviewing the brief I have found a problem: At the least, the SG’s Office has made an assertion without adequate support and in my view has probably made a misstatement about the history. This post will be getting into some detail, but it is necessary to correct the record.

One of the issues in the Recess Appointments case is whether the President may recess appoint someone to an office that was vacant when the Senate was in session. While I believe the text, structure, and history strongly indicate that he may not, the SG argues the opposite.

While the SG brief repeats many of the old arguments, it does present some new evidence. The most important originalist evidence that the SG offers is the claim that in November 1793, George Washington “recess appointed Robert Scot to be the first Engraver of the Mint, a position that was created by a statute enacted in April 1792. The vacancy arose when the statute was first passed, and was then filled during a later recess after at least one intervening session.” (P. 25)  If this claim withstood scrutiny, it would constitute the earliest example of a recess appointment made to an office that had been vacant during the session. But it doesn’t.

Here is a very plausible explanation as to how the recess appointment of Robert Scot was not to a position that was vacant during the session. The statute establishing the mint provided for various officers, including both the Chief Coiner and the Engraver. The statute specifically stated, however, that “it shall be lawful for the functions and duties of Chief Coiner and Engraver to be performed by one person.” 1 Stat. 247.  It turns out that Henry Voigt was appointed as the Chief Coiner (through a presidential nomination and consent of the Senate) in January 1793 (during the session of Congress).

Since there was no person serving as Engraver, it is reasonable to assume that Voigt performed both jobs. At a certain point, however, one may assume that President Washington determined that it made sense to fill the position with a separate person. If Washington made that decision during the recess of that year, then the office would have become vacant at the time. Thus, the recess appointment of Scott as Engraver would have occurred for an office that became vacant during the session.

Now, much of the story that I tell here is based on reasonable assumptions or inferences. It could turn out otherwise. But there are some reasons to believe that my account of the facts is correct. Let me just mention one. When President Washington recess appointed Robert Scott, Washington wrote that the Engraver position (as well as others) had “fallen vacant during the recess of the Senate.” Clearly, Washington believed that Engraver position had been filled during part of the recess. The SG brief neither explains nor mentions this statement.

In the end, we do not know for certain what happened. But the account that I give here seems stronger than the alternative one provided by the SG. In any event, the SG brief has no basis for rejecting my account and, unless it simply overlooked this possibility, seems open to criticism for failing to mention it.

(Cross posted at the Liberty Law Blog.)