Michael Rappaport on the Nonoriginalist Arguments for Broadening the Recess Appointments Clause

Those who have been following the recess appointments litigation are probably aware of the extensive originalist arguments that the Recess Appointments Clause is limited to appointments that arise (“happen”) while the Senate is in recess, and that “recess” means that the Senate is not in session. Those arguments were made by University of San Diego professor Michael Rappaport in a 2005 law review article and have been widely cited by the courts and litigants in the Noel Canning litigation. (And who says law review articles aren’t relevant?)

Now Professor Rappaport has written a new article on recess appointments, which has just gone up on SSRN. This one addresses the non-originalist arguments for departing from the original meaning of the clause. Here is the (lengthy) abstract:

The Constitution requires officers to be appointed through a process of presidential nomination and senatorial consent, but the Recess Appointments Clause allows the President alone to make temporary appointments during Senate recesses. In this way, the President can fill offices even if the Senate is not available to confirm a nominee.

A key question is how broad the President’s recess appointment authority is. In a 2005 article, I argued that the original meaning of the Clause provides narrow authority to the President. The executive branch, however, interprets the Clause much more broadly.

If the executive’s interpretation is inconsistent with the original meaning, then how do its defenders seek to justify it? The main method has been to argue that various nonoriginalist considerations indicate that the executive’s broad interpretation should be followed. In this article, I examine the principal nonoriginalist arguments that might be made and show that none of them provides a persuasive case for departing from the original meaning.

A common argument made against following the original meaning of a provision is based on living constitutionalism. Under this approach, the original Constitution is seen as an old, potentially outdated document and judges are viewed as having the power to update its provisions to take into account modern values and circumstances. And it is clearly true that the circumstances governing appointments have changed since the late 18th century, when antiquated transportation methods generally led the Senate to take recesses of between 6 to 9 months.

But these changes in circumstances argue for narrower, not broader recess appointment authority. In a world with airplanes, Senate recesses are shorter and therefore there is less need to allow the President to make unilateral appointments. Moreover, modern appointment practices indicate that appointments take a long time, with on average nominations taking 4 months and appointments taking 5 to 6 months. This evidence suggests that short recesses of 10 or 30 days, which delay appointments by only a fraction of the ordinary appointment process, do not justify bypassing the senatorial confirmation requirement.

The most common and probably the strongest argument for departing from the original meaning is based on historical practice. Defenders of the executive branch’s view of the Clause argue that the political branches have followed a practice allowing broad recess appointment power and that this practice has either been agreed to or acquiesced in by the legislature.

This Article reviews the recess appointment practice and argues that this account of the practice is mistaken. It shows that Congress has passed statutes in 1863 and 1940 that have rejected the executive’s broad view. The executive, however, has mistakenly interpreted the latter statute to allow it broad authority. As the executive has asserted recess appointment power more aggressively in recent years, the legislative houses have resisted this authority by holding pro forma sessions.

But even if the executive’s interpretation of the Clause were supported by historical practice, I argue that would not justify departing from the original meaning. The Congress or Senate’s consent or acquiescence is insufficient to justify departing from the Constitution. If the Senate consented to an expansion of the President’s recess appointment power, that agreement might be a desirable arrangement from the perspective of the President and the Senate. But the purpose of the Constitution is to protect the people, not to further the interests of the political branches, and senatorial consent is an essential aspect of such protection.

Note: The first draft of this article was written in the summer of 2013, before the briefs were submitted to the Supreme Court in the Noel Canning case. In October, 2013 the Solicitor General filed its brief, which included a large number of intrasession recess appointments that had not previously been uncovered. This article was then revised to take account of these newly uncovered recess appointments.

An earlier version of this article was also cited in the amicus brief I co-authored in Noel Canning; I’m glad that it’s now publicly available. I’d recommend it to anybody interested in the recess appointments issue.