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08/08/2014

The Truth About the Supreme Court's Recess-Appointments Ruling: A Reply to Professor Semeraro
Bryan Wildenthal

[Bryan Wildenthal is a Professor of Law at Thomas Jefferson School of Law.  This is part 3 of an exchange between Professor Wildenthal and Professor Steven Semeraro.  Part 1 is here and part 2 is here.]

I won't pursue​ all of​ Steve Semeraro's excellent points at length ​here, but he does ​make a ​strong​case for a non-originalist approach ​in this context (though I am not necessarily persuaded by his arguments)​. 

I would say​, Steve, that​ you raise some very interesting and fundamental issues about what "originalism" means and how much role the Framers (or ratifying "founders' generation"​ as​I would prefer to focus ​up​on) "intended" or what "purpose" they had in enacting ​or ​adopting a particular Clause.

I would start ​by​ asking whether there is any reasonable ambiguity in the text, requiring us to resort to broader "intents" or "purposes." Not surprisingly, I would tend to say "no" here. Sometimes the text itself, with some fairly simple "dictionary" aids, really does answer legal and even constitutional questions, in my view. I guess that does align m​e​ a bit with ​Justice ​Scalia on some issues​ (​yikes!)​.​

As far as whether a recess appointment can fill "any" vacancy, or only one that arises during "the" (or a) ​"recess​"​ (however that is understood), I think even Justice Breyer signals and effectively concedes his deep uneasiness that he​ knows he​ is on very thin ice here. ​He starts off by admitting that the reading he eventually insists on (for weak "historical practice" reasons) is simply not the most "natural"! I think the text states the narrower meaning about as clearly as constitutional text can.

And once one accepts that, it largely moots the issue of which "recesses" count (only formal inter-session, or any old break during a session​?​). Because the shorter a break is, the less likely it is for any vacancy to arise during the recess in the first place, and the intra-session breaks are generally rather short (​A​dmittedly, these days, the inter-session breaks are also shorter and shorter, as Congress moves close to year-round session, a circumstance the founding generation​simply​ did not foresee)

Thus, genuine controversies about appointments during "ultra-short" recesses (3 days in Obama's NLRB appointments in Jan​uary​ 2012, or an "instantaneous fraction of a second" in the notorious case of President Theodore Roosevelt's attempted recess appointments in 1904),​ will be rare as hen's teeth.

I would admit the textual issue is somewhat more debatable as to what kind of "recess" counts (though not as debatable as Justice Breyer or my colleague Steve claim).

​In sum, ​I would generally say the only permissibly relevant "purpose" of the drafters and ratifiers in 1787-89​, was simply to adopt a Clause that clearly, by its text, allows ONLY for a president to make temporary, short-lived appointments to fill vacancies that happen *during* "the" formal recess between sessions of the Senate.

In my view, Steve's argument (and Breyer's) sidesteps the clear meaning of that text (whether in 1789 or today) to frame an alternative rule based on a broader rationale, that I think there is no evidence (at least no clear evidence) the founding generation embraced.

And although one may argue we today should embrace this broader rationale, I actually do not, and clearly many Senators of both parties do not and have not over more than 200 years (and several of our earlier Presidents formerly did not ​insist upon​ the broad view that all Presidents in recent decades seem to).

And if we're just arguing over whose rationale today should prevail, um, should not the text enacted in 1789 and still in force today, be the "tie-breaker" that decides who wins? If "originalism" means simply that clear text, whenever enacted, remains in force until and unless amended or repealed, I guess I​ do​ plead guilty to being an "originalist"​ at least in that sense. (I​ do​generally identify as an "originalist​" of some sort.​)​

Steve's alternative rationale (a perfectly reasonable and functional one to meet a practical concern) is that the Recess Appointments Clause:

"should enable the President make the appointments necessary to enable the government to do its work within a reasonable period of time whether the Senate acts irresponsibly by (1) calling an unreasonably long recess to delay the appointment; or (2) refusing to provide advice and consent and holding phony sessions to pretend that no recess has occurred."

This may be an arguably valid concern, to enable the President to make appointments that fill some objective need that he or others see. But I don't see how the Clause was written or intended to fill such a broad role. I think it really was, as fairly clearly written, just to enable the President to fill certain vacancies that crop up during a recess because the founding generation understood, in the horse-and-buggy era, that the Senate could not reassemble quickly.

If "modern circumstances" have changed so that the Clause or its meaning should also change, there is a remedy: amend the Constitution. And actually, you don't even need to do that to fill Steve's entirely reasonable and functional concern. Instead of recess appointments, as both Breyer and Scalia discuss, Presidents can make "acting" appointments of executive officials already in the particular departments, which is in fact what happens. Congress can provide by ordinary legislation for that and various other alternatives.

Of course, the President and Congress would have to negotiate and compromise on the terms of such legislation (what else is new?) rather than the President pulling out of his back pocket a convenient constitutional trump card (as Obama tried to do in this case).

Also, I would hesitate to label the Senate as being "irresponsible" or simply "not doing its job" on advice and consent, when it blocks a given appointment, or even any appointments to a certain office or judge. Yes, I myself often find that infuriating and "irresponsible" at some political level (and I'm sure presidents gnash their teeth over it). But presidents also may be "irresponsible" by insisting on the appointees they want and by not simply compromising with the Senate about certain appointments or certain agencies or their roles.

The Constitution clearly and explicitly provides both the Senate and President with certain raw powers, and simply because one side or the other acts childishly in "abusing" such powers (i.e., using them in a way that infuriates the other side), I do not think we have established that the Constitution has been violated.

The power to give "consent" includes the power to deny it --- for any reason, and I do not see how the Constitution validates certain reasons and rules off limits other reasons that a President or a Supreme Court may assess as not worthy or "serious" or "responsible" enough.