“No Instrument Could Long Endure Such Experiments.”

One of my favorite historical documents about recess appointments is the Senate Judiciary Committee’s 1863 report on the meaning of the Clause. (The document is here; a discussion by Michael Stern is here.)

As we note in our brief, in late 1862, Lincoln’s Attorney General, Bates, issued an opinion justifying an expansive interpretation of the Recess Appointments Clause on “the unbroken acquiescence of the Senate.” In early 1863, at the behest of the Senate, the Judiciary Committee responded.

It’s a really well-done piece of constitutional reasoning that emerged at an important historical moment. Yet the report is often neglected. (While it figures in Mike Rappaport’s pathbreaking article on the Clause, for example, it did not make the cut for co-blogger John Elwood’s “Recess Appointments Reading List” last April.) For those who are interested in the practice under the Clause, or who are interested in interpretations of the Constitution outside of the courts, I highly recommend it.

The Senate report goes through the text and purpose of the clause, and discusses the methodological issues in sophisticated terms. It notes, for example, that subsequent practice can be relevant to the “construction” of a constitutional provision, but only in interpreting ambiguity, not a provision that has a clear meaning and purpose.

And in my favorite paragraph, it discusses the dangers of the executive branch’s interpretation:

It is in reality only the invention of a phrase not contained in the text, giving it an effect which the text itself,by the ordinary rules of interpretation, forbids. No instrument could long endure such experiments. The rights secured by it would become the sport of interested ingenuity, and language itself a snare.