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

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

Not that the New York Times needs my help, and I'm certainly no expert in this area, but I think that the majority opinion deserves more credit. And because no one ever seems to debate anything anymore, I thought this would be a good one on which to present a contrasting opinion.

The precise meaning and content of a constitutional provision at the time it was adopted should not control its future application. Those of us who believe in the concept of a "Living Constitution" believe that its terms evolve to address the challenges of modern life. The genius of the drafters should not be ignored. But neither should it be cramped by the precise context that they considered. Justice Breyer's opinion correctly recognizes this -- "the Framers likely did intend the Clause to apply to a new circumstance that so clearly falls within its essential purposes, where doing so is consistent with the Clause’s language."  And that essential purpose, the majority concluded is to - "grant[] the President the power to make appointments during a recess but not offering the President the author­ity routinely to avoid the need for Senate confirmation." This strikes me as right, and the dissent's position that one must interpret the constitutional language as constrained by the specific purpose that the framers had in mind is, I believe, wrong.

I would criticize the majority opinion for failing to follow through on its initially correct interpretation of the clause by excluding "political disagreement" as a potential justification for a recess appointment. Overwhelmingly, political disagreement has been the reason for recess appointments.  And it seems to me that the "advice & consent" and "recess appointment" clauses were broadly intended to permit exactly that to occur. First, the clauses require consultation between the president and the Senate. If the framers believed that a purely political process were appropriate for appointment confirmation, they would have required Senate "approval." By choosing the phrase that they did, the framers conveyed a requirement of good faith cooperation that generally throughout the nation's history has been interpreted to permit the president broad authority to appoint the people necessary to implement the political program on which he was elected so long as those people were well qualified. Second, the recess appointment clause addressed situations in which an appointment was important to running the country, but the "advice & consent" of the Senate could not be obtained within a feasible time frame. To be sure, the framers had one particular example in mind. But there is no reason to think that they wouldn't worry about the principle of appointment timeliness more generally, including situations in which the Senate refused to play constitutional ball by treating the president as if he had taken power in a coup d'etat rather than a lawful election. Yes, elections might resolve disputes over confirmation by replacing those Senators responsible for holding up appointments. But it would take a long time. The whole point of the recess appointment clause is to allow appointments without unreasonable delay.

The events that led to this case are well known. The NLRB lost its quorum through member resignation, and a minority of the Senate blocked the appointment necessary to restore the quorum. It was quite clear that the minority's intent was not to provide "advise and consent" on the qualifications of a particular appointee as part of the cooperative process required by the Constitution. The intent was instead to block the President from appointing anyone who would implement the President's views on the proper interpretation of the labor laws. Because of the Senate minority's refusal to fulfill its "advice and consent" role in good faith, the "advice and consent" of the Senate could not be obtained within a feasible time frame, justifying a recess appointment. I have oversimplified the facts and perhaps the recess appointment of all three board members at issue in the case could not have been justified. But I believe that the basic point is correct. Although the recess appointment clause should not empower a president to routinely avoid Senate input on appointments, it 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.