The Truth about the Supreme Court's Recess-Appointments Ruling
Bryan Wildenthal

[Bryan Wildenthal is a Professor of Law at Thomas Jefferson School of Law.  This is part 1 of an exchange between Professor Wildenthal and Professor Steven Semeraro.]

It's not often that my view of a constitutional issue diverges so utterly from that of my favorite national newspaper, the New York Times.

The Times's editorial regarding NLRB v. Noel Canning, going out on quite a limb, condemns even the narrow ruling agreed upon unanimously by all 9 Justices, that a president cannot simply unilaterally override the Senate's own position that it has remained in session (albeit "pro forma") in order to block a presidential "recess appointment" (bypassing Senate confirmation).

The Times complains that the Court's narrow unanimous ruling allows the Senate to get away with political obstruction. Perhaps so, but the Constitution does not provide remedies for every type of political abuse or obstruction by either the Senate or the President. We have a political process and elections to deal with that. Nor was it ever the purpose of the Recess Appointments Clause to give the President a trump card in confirmation disputes with the Senate. Rather, the Clase had the far narrower purpose, now obsolete, of enabling necessary appointments when the Senate was out of session during the horse-and-buggy era and could not be conveniently reconvened for weeks or months at a time.

Get a grip, Times! The administration's position in that regard was arrogant and untenable and it's hardly surprising it drew unanimous rejection from the Court, including both of President Obama's own appointees and all four Justices generally typecast as "liberal."

Of course, what happened to the days when "liberal" Justices, and liberals generally, were properly cautious about ALL presidential-power overreach, even of presidents of their own party? Do we forget so easily the abuses of presidents we did not like so much, like Nixon in Watergate and Johnson in Vietnam? This case presents the bizarre spectacle of the four most liberal Justices upholding major aspects of a power that was notoriously abused by President George W. Bush, far more often than by President Obama; while Justice Scalia's concurring opinion for four Justices, favoring a more comprehensive crackdown on recess-appointment abuse, cites approvingly to a brief filed against ​President Bush in 2004​ by​ the late great liberal Democratic​ Senator Ted Kennedy!

The more fundamental issues decided in this case go to broader issues of the President's recess-appointment powers. They may have somewhat limited practical significance, since the Court upheld the Senate's ability to block such appointments by staying in "pro forma session," but they are still inherently important and for what they say about the Justices's competing views and uses (or misuses) of history.

The New York Times refers to what it calls "the bizarre prescription of the United States Court of Appeals for the District of Columbia Circuit that such [recess] appointments can only be made between sessions of Congress, and then only when vacancies occur during that limited recess. An expansive interpretation of recesses has prevailed since the beginning of the republic, Justice Breyer wrote, showing a regard for history not shared by Justice Antonin Scalia and three of his conservative colleagues, who wrote a concurring opinion that supported the circuit court’s ruling."

The Times's view is utterly and completely wrong and off-base​, as is Justice Breyer's depiction of the relevant history. I urge you to read the opinions for yourself​:

As Justice Scalia accurately summarized, in arguably the finest opinion in his tenure on the Court (ironically, another leading candidate is his lone dissent in ​ Morrison v. Olson, the​ 1988 decision​ in which he urged a broad view of presidential appointment powers in another context; he also got that one right, in my view; he would have struck down the then-special prosecutor law, which Democrats only later learned to hate when it was used against President Clinton by Ken Starr):

First, as to whether recess appointments may only be made during "the Recess" between formal "Sessions" of the Senate:

"Intra-session recess appointments were virtually unheard of for the first 130 years of the Republic, were deemed unconstitutional by the first Attorney General to address them, were not openly defended by the Executive until 1921, were not made in significant numbers until after World War II, and have been repeatedly criticized as unconstitutional by Senators of both parties. It is astonishing for the majority to assert that this history lends 'strong support,' ante, at 11, to its interpretation of the Recess Appointments Clause [which, as Justice Scalia had already persuasively explained, is untenable under the text and history of the Clause].

"And the majority’s contention that recent executive practice in this area merits deference because the Senate has not done more to oppose it is utterly divorced from our precedent. 'The structural interests protected by the Appointments Clause are not those of any one branch of Government but of the entire Republic,' Freytag, 501 U. S., at 880, and the Senate could not give away those protections even if it wanted to. See Chadha, 462 U. S., at 957–958 . . ."

(​Quoting ​Scalia, J., concurring in the judgment, slip pp. 25-26.)

As Justice Scalia also asks (slip p. 16): "If the Constitution’s text empowers the President to make appointments during any break in the Senate’s proceedings, by what right does the majority subject the President’s exercise of that power to vague, court-crafted limitations with no textual basis?" (Justice Breyer's majority opinion rips out of context an unrelated provision on congressional adjournments to say that a president can never make a recess appointment during a break shorter than 3 days, and invents out of whole cloth a 10-day minimum for a recess under which such an appointment is "presumptively" invalid; thus creating a nightmare of future litigation over whether the "presumption" may be overcome in some emergency situation.)

Second, as to whether such appointments may only be made to fill a vacancy which, as the Constitution very clearly states, "may happen during the Recess of the Senate" (if the broader meaning adopted by Breyer's majority had been intended, the Clause would obviously have referred simply to "any Vacancies during the recess of the Senate"):

"Washington’s and Adams’ Attorneys General read the Constitution to restrict recess appointments to vacancies arising during the recess, and there is no evidence that any of the first four Presidents consciously departed from that reading. The contrary reading was first defended by an executive official in 1823, was vehemently rejected by the Senate in 1863, was vigorously resisted by legislation in place from 1863 until 1940, and is arguably inconsistent with legislation in place from 1940 to the present. The Solicitor General has identified only about 100 appointments that have ever been made under the broader reading, and while it seems likely that a good deal more have been made in the last few decades, there is good reason to doubt that many were made before 1940 (since the appointees could not have been compensated [under the legislation referred to, in force from 1863 to 1940]). I can conceive of no sane constitutional theory under which this evidence of 'historical practice'—which is actually evidence of a long-simmering inter-branch conflict—would require us to defer to the views of the Executive Branch."

(​Quoting ​Scalia, J., concurring in the judgment, slip p. 47.)

​Like Justice Scalia, I also "can conceive of no sane constitutional theory under which this evidence of 'historical practice'—which is actually evidence of a long-simmering inter-branch conflict—would require us to defer to the views of the Executive Branch."

Scalia and his 3 colleagues are right in this case and Breyer and his 4 colleagues are wrong, plain and simple.

It is and was hypocritical that few if any Republican Senators joined Sen. Kennedy in 2004 in opposing President Bush's recess appointments, while all 45 joined in a brief opposing President Obama's in this case.

But why do Democrats, and progressive editorial voices like the New York Times, need to replicate such mindless politically-driven hypocrisy and opportunism (by some Republicans) on an enduring constitutional issue?

Justice Scalia can fairly defend himself from any charge of political hypocrisy on this issue: no case raising the recess-appointments issue came before the Court on the merits during the Reagan or Bush Administrations, and Justice Scalia has ruled against other expansive executive power claims in the past, e.g., rejecting Bush's detention without due process of a U.S. citizen in Hamdi v. Rumsfeld​ (2004​)​, a case that found him to the left of Justice Breyer, and dissenting against broad presidential use of "executive agreements" with foreign governments, without Senate ratification, in a 2003 case.

Does it occur to my progressive Democratic friends that President Obama, with his generally cautious and thoughtful approach to presidential power (at least compared to ​President ​G​eorge ​W. Bush, though Obama has abused his powers on some issues, like drones and targeted assassination of U.S. citizens abroad), will not be president forever?

Do they want to see future Republican presidents eagerly exploiting every executive-power loophole created by the Court or Obama?

As Justice Scalia very wisely summarized:

"[T]he majority’s insistence that the Senate gainsay an executive practice 'as a body' in order to prevent the Executive from acquiring power by adverse possession, ante, at 14, will systematically favor the expansion of executive power at the expense of Congress. In any controversy between the political branches over a separation of-powers question, staking out a position and defending it over time is far easier for the Executive Branch than for the Legislative Branch. See generally Bradley and Morrison, Historical Gloss and the Separation of Powers, ​126 Harv. L. Rev. 411, 439–447 (2012).

"All Presidents have a high interest in expanding the powers of their office, since the more power the President can wield, the more effectively he can implement his political agenda; whereas individual Senators may have little interest in opposing Presidential encroachment on legislative prerogatives, especially when the encroacher is a President who is the leader of their own party. (The majority would not be able to point to a lack of 'formal action' by the Senate 'as a body' challenging intra-session recess appointments, ante, at 15–16, had the appointing President’s party in the Senate not blocked such action on multiple occasions.) And when the President wants to assert a power and establish a precedent, he faces neither the collective-action problems nor the procedural inertia inherent in the legislative process. The majority’s methodology thus all but guarantees the continuing aggrandizement of the Executive Branch."

​(Quoting Scalia, J., concurring in the judgment, slip p. 26.)​

A Debate on Originalism and Recess Appointments
Michael Ramsey

The Originalism Blog is pleased to host, over the next day or so, a debate on originalism and the Supreme Court's Noel Canning decision between two of my cross-town colleagues: Bryan Wildenthal and Steven Semeraro, both Professors of Law at Thomas Jefferson School of Law (and both of whom I have known since the time we were law students together).

We have had this planned for a while but my travel schedule prevented me from finalizing it until now.  Welcome to Bryan and Steven.

Randy Kozel:Second Thoughts About the First Amendment
Michael Ramsey

Randy Kozel (Notre Dame Law School) has posted Second Thoughts About the First Amendment on SSRN. Here is the abstract:

The U.S. Supreme Court has shown a notable willingness to reconsider — and depart from — its First Amendment precedents. In recent years the Court has marginalized its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has rejected its past decisions on corporate electioneering and aggregate campaign contributions. And it has revised its earlier positions on union financing, abortion protesting, and commercial speech.

Under the conventional view of constitutional adjudication, dubious precedents enjoy a presumption of validity through the doctrine of stare decisis. This Article contends that within the First Amendment context, there is no such presumption. When the Court concludes that a precedent reflects a cramped vision of expressive liberty, adherence to the past gives way. Unfettered speech, not legal continuity, is the touchstone.

The best explanation for this phenomenon is the role of free speech in the constitutional order. The Court’s tendency is to characterize affronts to expressive liberty as dangerous steps toward governmental repression and distortion. From this perspective, it is little wonder that the Court eschews continuity with the past. Legal stability may be significant, but official orthodoxy seems like an excessive price to pay.

Yet the Court’s practice raises serious questions. Departures from precedent can be problematic, especially when they become so frequent as to compromise the notion of constitutional law as enduring and impersonal. If the doctrine of stare decisis is to serve its core functions of stabilizing and unifying constitutional law across time, the desire to protect expressive liberty must yield, at least occasionally, to the need for keeping faith with the past.


An Originalist Future
Mike Rappaport

John McGinnis and I have a new essay, An Originalist Future, describing what the world would like if originalism became the dominant method of constitutional interpretation.  See here and here.   It is based in part on the last chapter of our book, Originalism and the Good Constitution, but goes beyond that chapter.

In the essay, we write:

Reviving a comprehensive originalism would greatly improve our polity, creating both better judicial decisions and a more vigorous constitutional politics.  It is a world where constitutional decisions would have good consequences and constitution making would become both popular and future-oriented.  It bears no resemblance to the world which critics of originalism fear—where the dead hand of the past traps the living into a dead end of anachronistic principles.  Only through a systematically originalist jurisprudence can constitutional law become what it must be if it is to act as the true rudder of the nation–simultaneously law that is unchanging and objective, law that is of high quality, and law that is subject to revision by the people of each generation.

One of the basic points of the essay is that if the Supreme Court refuses to update the Constitution – if it simply decides cases based on the original meaning – then the only way to update the Constitution will be through the constitutional amendment process.  While that process has now been superseded by Supreme Court judicial updating, a return to originalism would revive that process.  Once again, the people of the United States could undertake to decide on the content of their fundamental charter rather than leaving that task to the whims of a majority of 9 Justices.

(Cross posted at the Liberty Law Blog)

James Fleming: The Inclusiveness of the New Originalism
Michael Ramsey

James Fleming (Boston University - School of Law) has posted The Inclusiveness of the New Originalism (82 Fordham Law Review 433 (2013)) on SSRN. Here is the abstract:

In tracing the arc of originalism from the old originalism to the new, I observe a shift from an exclusionary outlook to an inclusionary outlook, reflected in new originalists’ proclamations that “we are all originalists now.” As my title suggests, I am going to bring out the inclusiveness of the new originalism and ponder its implications. The new originalists have emphasized two developments: (1) the movement from a focus on “intention of the framers” to “original public meaning” and (2) the articulation of and emphasis on the distinction between interpretation and construction. My main points are two. First, the inclusiveness of the new originalism (for example, that it countenances construction and “multiple modalities” in constitutional law, not just interpretation as the old originalists understood it) shows that it will require the very judgments that proponents of the moral reading have argued are necessary in constitutional interpretation and construction (and that old originalists asserted were illegitimate). Indeed, this inclusiveness points toward the possibility of reconciliation between certain forms of the new originalism and the moral reading that I defend. But second, I shall sketch a cautionary tale about the movement within originalism from “intention of the framers” to “original public meaning.” For example, in Justice Scalia’s hands, resort to original public meaning over and against the purposes of constitutional amendment as expressed by the framers and ratifiers in their language and debates may blunt the very possibility of constitutional transformation through amendment.


Myron Magnet: It’s Not Your Founding Fathers’ Republic Any More
Michael Ramsey

At City Journal, Myron Magnet: It’s Not Your Founding Fathers’ Republic Any More (commenting on recent books by Adam Freedman [The Naked Constitution], Mark R. Levin [The Liberty Amendments], Richard A. Epstein [The Classical Liberal Constitution], and Philip K. Howard [The Rule of Nobody]).  From the introduction:

... As these books show, all branches of government conspired over more than a century to turn the Constitution that the Framers wrote in 1787, plus the Bill of Rights that James Madison shepherded through the first Congress in 1789 and the Fourteenth Amendment ratified in 1868, into something their authors would neither recognize nor endorse.

The signal feature of the 1787 Constitution was its prudent restraint. The Framers learned from hard Revolutionary War experience that their new nation needed a more powerful central government than the Articles of Confederation authorized. But they bestowed the requisite powers with a trembling hand, knowing that the men who would exercise them were not angels but humans, as fallible as all other men—and usually more so, since overweening ambition and self-interest, not patriotism, are the standard spurs to seeking office. Recognizing that electing your officials doesn’t ensure that they won’t become as tyrannical as the hereditary monarchs the colonists had fled, the Framers’ hemmed in and divided government authority, giving Congress only 19 specific powers that mostly concerned raising taxes, coining money, spending it on “the common Defence and general Welfare of the United States” (meaning keeping the country safe), building post offices and post roads (but not turnpikes and canals), regulating the armed forces, and making laws necessary and proper to carry out these limited functions. Constitution architect James Madison, always at the vortex of the fierce disputes over what measures these enumerated powers implied as necessary and proper, concluded—after serving for a quarter-century as a congressman, secretary of state, and president—that the bedrock constitutional principle was simply to ensure that America does not “convert a limited into an unlimited Govt.”


Judge Brett Kavanaugh: The Enduring Significance of the Precise Text of the Constitution
Michael Ramsey

In the current issue of the Notre Dame Law Review, Brett M. Kavanaugh (D.C. Circuit) has the essay Our Anchor for 225 Years and Counting: The Enduring Significance of the Precise Text of the Constitution.  Here is the abstract:

When one comes to Notre Dame, whether for a law review symposium or for a football game or for both, your mind is drawn to fundamentals and history.  This is a place that oozes history, and in that vein, I want to take a step back and focus on the text of our Constitution.  I want to focus on that text in two dimensions.  First, I want to explain how the text of the Constitution creates a structure—a separation of powers—that protects liberty.  And in particular, I want to emphasize how that structure tilts toward liberty, how it creates legislative and executive branches with finely specified powers so as to protect individual liberty against oppressive legislation.  Second, I want to focus on the role of the Supreme Court in that constitutional structure—and how the Court itself looks to the precise words of the constitutional text both to preserve the separation of powers established by the Constitution and to protect individual liberty.  My overriding message will be that one factor matters above all in constitutional interpretation and in understanding the grand sweep of constitutional jurisprudence—and that one factor is the precise wording of the constitutional text.  It’s not the only factor, but it’s the anchor, the magnet, the most important factor that directs and explains much of constitutional law, particularly in the realm of separation of powers.


Richard Samuelson on the Halbig litigation and Chevron Deference
Micahel Ramsey

At Liberty Law Blog, Richard Samuelson (CSU San Bernardino, History): Time to Rethink the Chevron Doctrine.  An excerpt:

It is ... worth asking whether the Chevron Doctrine is itself mistaken. I would argue that it has deeply troubling implications for republican self-government. When “We the People” created the federal government, giving it certain powers, we ratified the Constitution. It established three branches of government: legislative, executive, and judicial. If the branches are to be equals, each must have an equal right to interpret the Constitution. Failing that, the branches cannot be equal. The Congress is also “the People’s House.” The legislative power is in Article 1 of the Constitution for a reason. The men who wrote and ratified it believed that the legislative branch, being closest to the people, was the most important. That being the case, it is entirely reasonable for federal courts, although  part of an equal and independent branch, to pay Congress a great deal of deference. It should presume that Congress would not intentionally violate the Constitution.


A like deference emphatically is not owed to the federal bureaucracy.  ...

... Precisely because it is problematic, from the perspective of having a government of, by, and for the people, to have our legal code written by bureaucrats, if there is a question of statutory construction, the general rule should be against the expansion of the Fourth Branch’s power. If such power is needed, then the people’s representatives can pass another law adding it.

Plus a strong response in the comments from "Grant", beginning: "While I am also troubled by the excesses of the adminsitrative state, the path that you propose is a path towards less democracy and more activism, just by a different group."

Scott Lemieux on Bruce Allen Murphy on Scalia
Michael Ramsey

Scott Lemieux (Lawyers, Guns and Money) comments (harshly) on Bruce Allen Murphy's Scalia: A Court of One: Murphy's Hamdi Botch.  From the conclusion:

[I]n an extreme form it [the error on Hamdi] illustrates why Scalia: A Court of One is a major disappointment ... [A] lot of the book is taken up with Murphy’s analysis of what Scalia contributes to the United States Reports, and this really isn’t Murphy’s strong suit. Again, the hash [Murphy] makes of Hamdi seems to be an outlier, but he’s sometimes shaky on basic concepts (“the Court defers to a state’s laws because a rational person would agree with them” isn’t really what the “rational basis” test means) and even when his doctrinal analysis is unobjectionable it’s pedestrian.

(Via Ed Whelan, who adds his thoughts here).


Zachary Clopton: State Law Litigation of International Norms
Michael Ramsey

Zachary Clopton (University of Chicago Law School) has posted two related articles on SSRN.  The first is State Law Litigation of International Norms: Horizontal and Vertical Dimensions (108 American Society of International Law Proceedings __ (2014 forthcoming)); here is the abstract:

For decades, scholars of international litigation focused their attention on the federal courts. The combination of diversity, alienage, federal question and Alien Tort Statute (ATS) jurisdiction largely justified this focus, opening multiple avenues for litigants to prosecute claims in federal courts. In recent years, however, the federal courts have closed some doors to international litigation. In response, international litigators have turned their gaze to state courts. This panel is but one example of this new direction. For an excellent earlier treatment of this topic, the U.C. Irvine Law Review published a symposium issue in 2013 dedicated to human rights litigation in state courts and under state law. [Ed.: Here is the introduction to that symposium.]

Within this new domain of U.S. states and international law, the focus justifiably has been on causes of action derived from common-law sources (whether in state or federal courts): (i) state law; (ii) foreign law, through state choice of law rules, and (iii) international law, also through state choice of law. What unites these categories is that courts are responsible for the relevant lawmaking choices. But state political branches also can engage with international norms. Examining the current and potential roles for state political branches permits an examination of doctrinal and theoretical questions in state litigation. First, I will offer some examples (real and hypothetical) of state political branch involvement. Then I will discuss two sets of inquiries in these cases: vertical debates about federal versus state actors, and horizontal debates about courts versus political branches. Third, I will discuss federal court doctrines that could limit state-level litigation, but I will do so in light of these horizontal and vertical dimensions. Finally, I will comment briefly on how state political branch involvement could play out with respect to the litigation of international norms.

The second is Executive Foreign Policy and the States: Recent Developments (111 Michigan Law Review First Impressions 28 (2012)) on SSRN. Here is the abstract:

On February 23 of this year, the Ninth Circuit Court of Appeals invalidated a California statute permitting victims of the Armenian genocide to file insurance claims, finding that the state's use of the label "Genocide" intruded on the federal government's conduct of foreign affairs. This decision, Movsesian v. Versicherung AG, addresses foreign affairs federalism — the division of authority between the states and the federal government. Just one month later, the Supreme Court weighed in on another foreign affairs issue: the separation of foreign relations powers within the federal government. In Zivotofsky v. Clinton, the Supreme Court ordered the lower courts to help referee a conflict between the executive and legislative branches of the federal government concerning how Jerusalem — born American citizens list their country of birth on their passports. The former case presented an issue of federalism and the latter an issue of separation of powers; yet both cases sought to delineate foreign affairs authority in the United States.

This Essay addresses the relationship between the states and the federal executive in foreign affairs — a federalism question — in light of coming separation-of-powers decisions. Part I briefly outlines foreign affairs federalism: how far into foreign affairs may states reach without stepping into the federal government's exclusive terrain? Part II looks at a particular permutation of this federalism debate, examining the conflict between the states and the national executive. Movsesian, the Armenian genocide case, highlights this state-executive clash. The panel and en banc opinions in Movsesian offered two different approaches to this federalism question, both of which present textual and practical difficulties. Having laid out the problems with these approaches, Part III looks for answers in an unlikely place: decisions about the separation of powers within the federal government. In Zivotofsky, the Supreme Court called for increased judicial participation in contests between Congress and the President in foreign affairs. This command will produce a body of law defining the sphere of exclusive executive authority vis-à-vis Congress. Synthesizing these decisions, Part IV argues that, for structural and pragmatic reasons, courts should bar states as well as Congress from this exclusive executive sphere. The Supreme Court has called upon the courts to articulate the boundaries of executive and legislative authority within the federal government, but in so doing, the courts indirectly will provide guidance about the division between the federal government and the states.

My take on these issues from an originalist perspective is somewhat different, see here, here and here.