Archive | Recess Appointments

Methodological Consistency in Noel Canning

One theme of the amicus brief I helped write in Noel Canning was the need for a consistent treatment of text, history, and modern practice. If the executive branch wishes to argue that modern practice trumps the text and early history on questions 1 and 2 (“the recess” and “happen”), then it should be stuck with modern practice with respect to question 3 (pro-forma sessions).

I was pleased to see Justice Kagan express a very similar sentiment during yesterday’s oral argument:

JUSTICE KAGAN: General, I think that [reliance on modern practice is] a really strong argument, but I have to say I’m not sure it applies consistently throughout each of the three claims that you make.

Because if you are going to rely on history and on the development of an equilibrium with respect to what “happens” means, and if you are going to do that again with respect to whether intra-session recesses are included, then it seems to me you also have to look to history and the development of an equilibrium with respect to Congress’s definition of its own power to determine whether they are in recess or not.

In other words, your third argument about pro forma sessions, the history is entirely on the Senate’s side, not on your side. And if we’re going to take a kind of continuing practice and the development of equilibrium seriously, you might win on questions 1 and 2 and then lose on question 3.

Along very similar lines, over the weekend I published an op-ed in Forbes arguing that “regardless of whether one agrees with originalism, the appointments are still unconstitutional.” [...]

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Further Thoughts on “During the Recess”

A while ago, I wrote a post about the grammar of the Recess Appointments Clause, which began:

The Recess Appointments Clause, recall, says: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

Several readers have asked about which verbs are modified by the phrase “during the Recess.” It has generally been thought that “during” modifies “happen” — and sensibly enough, since the two words are right next to one another. Yet it also has generally been thought that the President must make the appointments during the recess, too. One way (not the only way, but the most straightforward way) for that to be true is if the “during” clause modifies both sets of verbs — “happen” as well as “have/fill.”

Some commenters on this post have suggested that this is simply not possible as a matter of text. But it seems to me that one can think of other parallel sentences where it is indeed permissible, given the context and common sense, to think that the “during” clause modifies both sets of verbs. . . .

Professor Michael Herz has a new post up on Balkinization, responding to mine. It is a long post, which those interested probably ought to read in full, but here is the central claim:

Baude, Hartnett, and others have all posed the question as being whether “during the Recess” modifies only “Vacancies that may happen” or also “The President shall have the power to fill up.” But there is a third alternative. The phrase “during the Recess” could modify only “fill up” and simply not apply to “Vacancies that may happen” at all.

I would suggest that the clause can

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ABA Teleforum on Recess Appointments Friday

If you haven’t yet heard enough from me about Noel Canning and recess appointments — or if you want to actually hear me talk rather than just read me — I will be doing a teleforum for the American Bar Association on the case on tomorrow morning at 11:30 EST. (You could catch much of it before leaving for to see co-blogger Nick’s debate at Cato.)

I will be discussing it with Doug Kendall of the Constitutional Accountability Center, an important organization that argues that the text and history of the Constitution can be used to support progressive causes. Kendall and the Center also filed an amicus brief in Noel Canning (supporting the executive branch’s position).

At any rate, this flyer contains the details for those interested. To get the call-in number you need to sign up in advance, but you don’t need to be an ABA member (or a lawyer) — you can just leave that part of the form blank. [...]

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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

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Constitutional Law Scholars’ Noel Canning Amicus, Part III: Pro Forma Sessions

The third issue addressed in our amicus brief is the validity of the Senate’s pro forma sessions under the Recess Appointments Clause. To avoid the force of the historical definitions of “happen” and “recess,” one would need to argue that the more modern practice is what should be controlling. But under modern practice, we argue, the Senate’s pro forma sessions are valid, so the Solicitor General loses on that ground instead.

This is the shortest part of our brief. And here it is:

III. Under Modern Practice and Pragmatic Construction, The Senate’s Pro Forma Sessions Interrupt A Recess

The third consistent approach to interpreting the Recess Appointments Clause for purposes of this dispute would rely on longstanding, but more recent practice. For many decades, without objection or controversy, both Houses of Congress have employed “pro forma” sessions for several constitutional purposes. To promote structural consistency, the Court should recognize “pro forma” sessions as no less effectual under the Recess Appointments Clause. The effect is to make the breaks between those sessions in January 2012 merely three days long. No recess appointment has ever been made during an “intrasession” recess that short.
While the OLC opinion and some previous government briefs had been cagey about whether a recess appointment could be made even during a three-day intrasession recess, the Government’s brief in this case explicitly concedes that “such short intra-session breaks—which do not genuinely render the Senate unavailable to provide advice and consent—are effectively de minimis and do not trigger the President’s recess-appointment authority.” U.S. Br. 18.

A. Under Modern Practice, Pro Forma Sessions Are Routinely Respected As Genuine

The Constitution provides that “each House may determine the rules of its proceedings,” U.S. Const. art. I, § 5, cl. 2. Using that authority, the Senate frequently agrees that it will meet

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Constitutional Law Scholars’ Noel Canning Amicus, Part II: “Recess” and “Session”

The second issue addressed in our amicus brief is what the Recess Appointments Clause means by “recess” and “session.” Our brief discusses the original meanings of these terms, as well as the structure, purpose, and history that clarify the meanings of those terms in context. Most importantly, we argue that the Senate cannot be in “recess” and in “session” at the same time.

Several of these points were made very well a few years ago in several amicus briefs filed by Senator Ted Kennedy (with Laurence Tribe and Marty Lederman serving as his counsel), as well as more recently in a series of excellent blog posts by Michael Stern, at Point of Order. Others are made in a forthcoming article (not online yet) by Mike Rappaport.

Here’s how we put the argument in the brief:

II. The Text Implies, and Long Practice Confirms, That Recesses Occur Between Sessions, Not During Them

The recent lower court decisions addressing the merits all conclude that Presidents may not use recess appointments to fill vacancies during so-called “intrasession recesses,” regardless of how one interprets the word “happen.” We acknowledge that the text of the Recess Appointment Clause standing alone does not explicitly preclude the concept of “intrasession recesses.” Nonetheless, it is best read—in light of parliamentary practice and the purpose of the Clause—to implicitly foreclose such appointments. That this is the most natural meaning of the text is confirmed by long practice. If, however, the Court abandons the formal definition of “recess,” it should likewise abandon a formal definition of “session,” meaning that recess appointments will generally last for weeks, not years.

A. The Constitution’s Text and Purpose Imply that Recess Appointments Are Limited To Intersession Recesses

It is something of a misnomer to refer to “intrasession” and “intersession” recesses, as the parties

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“During the Recess”

The Recess Appointments Clause, recall, says: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

Several readers have asked about which verbs are modified by the phrase “during the Recess.” It has generally been thought that “during” modifies “happen” — and sensibly enough, since the two words are right next to one another. Yet it also has generally been thought that the President must make the appointments during the recess, too. One way (not the only way, but the most straightforward way) for that to be true is if the “during” clause modifies both sets of verbs — “happen” as well as “have/fill.”

Some commenters on this post have suggested that this is simply not possible as a matter of text. But it seems to me that one can think of other parallel sentences where it is indeed permissible, given the context and common sense, to think that the “during” clause modifies both sets of verbs.

Here are a few I thought of:

The soldiers were authorized to shoot any Germans they encountered in the trenches during the war.

It seems permissible to read this to be limited to those who are both shot and encountered during the war — you can’t shoot somebody 20 years later just because you saw them in the trenches back then.

The trial judge may exclude from the courtroom any spectator who is disruptive during the trial.

Again, it seems permissible to read “during the trial” to modify both “exclude” and “is disruptive.” The judge couldn’t necessarily exclude people who’d been disruptive some other time, and he couldn’t necessarily exclude people permanently from that room once the trial was over. [...]

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Constitutional Law Scholars’ Noel Canning Amicus, Part I: The Original Meaning of “Happen”

Yesterday I posted the amicus brief that I and a group of constitutional law scholars filed in the Court’s recess appointments case, Noel Canning. Taking a page from Eugene, I thought I’d put break our argument out into three blog posts this week, for those who are curious but don’t want to read through the entire PDF.

The first of the three issues we address is the meaning of the word “happen.” The Clause empowers the President to fill up “Vacancies that may happen during the Recess of the Senate,” and we argue that this originally meant that the office has to become vacant during the recess.

The original meaning of the Clause on this point is covered by the respondent and by the excellent “Brief of Originalist Scholars.” Section One of our brief discusses some of the same arguments and adds two other points based on historical practice — 1, that most of the Solicitor General’s attempts to assert counter-examples in early practice turn out to be mistaken, and 2, that for a long time, the Senate expressly resisted the executive branch’s expansive interpretation of the Clause. (These are I.C. and I.D. below.)

I’ve reprinted Section One of our brief (with a few footnotes omitted) below the fold:

I. Under The Text and Original Meaning of the Recess Appointments Clause, The Office Must Fall Vacant During The Recess

The Recess Appointments Clause states that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” U.S. Const. art. II, § 2, cl. 3. The most obvious meaning of the word “happen” is to “occur” or “take place,” and the most obvious meaning of the word “vacancy”

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“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.

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Our Constitutional Law Scholars’ Amicus Brief on Recess Appointments

Yesterday, Michael McConnell and I filed an amicus brief in NLRB v. Noel Canning (the Supreme Court’s recess appointments case) on behalf of ourselves and a group of other constitutional law scholars, including co-conspirators Dale Carpenter, Eugene Kontorovich, and Nick Rosenkranz, as well as Nathan Chapman, Samuel Bray, John Eastman, Richard Epstein, Michael Greve, Joshua Hawley, Kurt Lash, and Sai Prakash. Now that the brief is done, I’ll likely blog some about the various amicus briefs and other developments in the case. But for now I thought I’d share ours. Here’s the introductory statement and summary of the argument:

STATEMENT

Especially in the absence of judicial precedent, disputes about the Constitution’s meaning often reduce to disputes about interpretive methods. The interpretive tools are familiar: constitutional text, structure, historical context, early practice (which bears on original meaning), longstanding practice (which constitutes nonjudicial precedent), and pragmatic consequences. Disputes arise, however, over their relative force. For purposes of this brief, amici take no position on the relative weight or merit of these methodologies, except to say that the Court should: (1) take care to ensure that it relies on accurate and complete historical facts, (2) consider pragmatic consequences only as related to the purposes of the constitutional provision, and (3) apply the same methodology consistently to each of the sub-issues in the case.

SUMMARY OF ARGUMENT

Under any plausible method of interpretation, consistently pursued, the President’s recess appointments to the NLRB on January 4, 2012, are problematic.

1. The original meaning of the text of the Recess Appointments Clause, U.S. Const. art. II, § 2, cl. 3, empowered the President to fill vacancies only if they arise while the Senate is in recess. That clear original meaning is confirmed by the purpose of the Clause, and by both Presidential and Congressional practice during

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Senate Rules Change and Noel Canning

Although most of the coverage of the Senate Rules change has concerned the immediate effect on the composition of the D.C. Circuit, it occurs to me that it is also relevant to NLRB v. Noel Canning.  Many recess appointments in recent years were of nominees who enjoyed majority support, but a Senate minority prevented a vote on their nominations.

Thus, if Noel Canning prevails in the Supreme Court in its challenge to President Obama’s recess appointment power, the effect on Executive Branch operations (and judicial operations, for that matter) will likely be less severe–at least until the Senate and the presidency are not in the hands of the same party.   In other words, the government’s “parade of horribles” just got a little less horrible (in the near term). [...]

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White House: No Plans To Pull Back on Recess Appointments Case

People with too much time on their hands know that I’ve made a cottage injustry out of addressing questions about whether new appointments to the NLRB would moot the NLRB v. Noel Canning case before the Supreme Court, involving the constitutionality of President Obama’s January 2012 recess appointment of three NLRB members.

I’ve also heard questions about whether the Administration would want to get rid of the case now that it looks like it will be able to get a full slate of confirmed Board members.  The answer, apparently, is “no.”  From today’s White House Press Briefing:

Q Now that you have this deal, do you want to see the — does the administration and the President want to see the Supreme Court weigh in on recess appointments? Or are there any considerations of asking them to dismiss that case?

MR. CARNEY: Well, I would refer you to the Department of Justice, but I would say that the question of whether any President should retain the ability that has been enjoyed by Presidents for over a century to make recess appointments is one that is still at issue. And our views on this have not changed. What the next steps are I would leave to the Justice Department to describe, but as you noted, that case is before the Supreme Court, and our position on it and the right of this President and any President going forward to make recess appointments as predecessors have for more than a century remains very strong.

Q So it sounds like you would like to see the Supreme Court continue –

MR. CARNEY: Well, again, the answer is, yes. But for specific legal questions I would refer you to Justice.

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Divided Panel of Fourth Circuit Invalidates NLRB Recess Appointments

Late this afternoon, a divided panel panel of the Fourth Circuit invalidated President Obama’s January 2012 recess appointment of three NLRB members. People who have remarked on the fact that only judges appointed by Republican presidents have so far voted to invalidate these appointments, while judges appointed by Democrats have voted to uphold them, will note that the same was also true here: the majority opinion was written by Senior Judge Clyde Hamilton (appointed by George H.W. Bush) and joined by Judge Allyson K. Duncan (appointed by George W. Bush); the opinion concurring in part and dissenting in (relevant) part was written by Judge Albert Diaz (appointed by Barack Obama).  (If you look back at my prior posts on this subject, you will see that I am not one of those people; but there are enough people who have noted it that I feel like I have to address  the issue.)  I think a more noteworthy pattern  is how the opinions on this subject are growing in length: the opinions in Noel Canning v. NLRB totalled a relatively brisk 47 pages; NLRB v. New Vista Nursing totalled 157 pages; NLRB v. Enterprise Leasing Co. Southeast weighs in at an awesome 167 pages.  (In fairness to the Fourth Circuit, their discussion of the constitutionality of recess appointments doesn’t even begin until page 56, after they’ve addressed other issues.)

The majority concluded that the President’s power under the Constitution to make recess appointments during “the Recess of the Senate” is limited to “intersession” recesses.  While the court said it “may not agree with the level of significance placed on ‘the’ by the court in Noel Canning, we agree that the use of the definite article suggests some ‘specificity.’”  Slip op. 92.  It agreed with (my recollection of) the Third Circuit’s opinion that [...]

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Could Senate Action After Cloture Reform Moot Noel Canning?

Over at Concurring Opinions, Gerard Magliocca notes that the Senate Democrats are considering a rule change that would bar filibusters for executive branch nominees, and states that “[p]art of the plan (or bluff) involves the confirmation of all the President’s nominees for the vacancies on the NLRB. These are the same vacancies that the President filled with recess appointments last year and were declared unconstitutional by the Third and D.C. Circuits.” He then asks the following:

Suppose the Senate does confirm these people. Can they then confirm retroactively all of the decisions made by the recess appointees? (Since I think the recess appointees and the nominees are the same, it would be confirming their own decisions.) If so, then that would moot the appeal from the D.C. Circuit on which the Supreme Court granted certiorari.

Likewise, the Washington Post yesterday wrote that “[i]f the Senate confirms those temporary appointees to full terms, the board could presumably reissue those rulings and render moot the debate over their validity.”

I’m no expert. (Since when has that stopped me before?) But based on the jurisdictional rules that apply to the NLRB and which are common for review of agency adjudications (and, in a slightly different way, district court decisions), it appears that an NLRB with newly confirmed members could not simply ratify the decision in a particular matter previously made by the Board while it still had recess-appointed members. As with many agency adjudications, the governing statutes shift jurisdiction from the agency to the reviewing courts. The National Labor Relations Act provides in relevant part that:

[u]pon the filing of such petition [to review in the court of appeals], the court . . . shall have jurisdiction of the proceeding and of the question determined therein . . . . Upon the filing

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