ESB Professional/Shutterstock.comComparing Traditionalism and Originalism II
CUNY staff members protesting on July 28, 2016 on campus in New York City. (Credit: Erik McGregor/Pacific Press/Alamy Live News).
In my last post, I explored the interpretive method of the majority opinion in Town of Greece v. Galloway, describing it as traditionalist though with interesting connections to certain strands of originalism. In this post, I’ll take a look at another traditionalist decision, NLRB v. Noel Canning. As with the post on Town of Greece, the object is simply to individuate the opinion as distinctively traditionalist, not to defend it.
The Statutory Limitation on Recess Appointments
CUNY staff members protesting on July 28, 2016 on campus in New York City. (Credit: Erik McGregor/Pacific Press/Alamy Live News).
I know that interest in Recess Appointments has waned since the Supreme Court decided the Noel Canning case last year, but I have been brought back to the subject, since I have been doing the final edits on an article I wrote last year (that was cited several times by Justice Scalia’s concurrence). The article – Why Nonoriginalism Does Not Justify Departing from the Original Meaning of the Recess Appointments Clause – focuses on the practice of recess appointments over the 225 years since the enactment of the Constitution.
Unfortunately, Justice Breyer’s opinion for the majority has, for now at least, misinterpreted the Recess Appointments Clause. But one feature that the article discusses is of continuing relevance. In 1940, Congress passed a statute, codified at 5 U.S.C. 5503, which restricts payment of salaries to recess appointees when the vacancy that they fill existed while the Senate was in session. The statute then permits three limited exceptions to the prohibition on payment.
Depending on how one interprets the statute, the statute could have had a significant role in limiting the President’s recess appointment power. As with all things involving the recess appointments issue, the Executive Branch has been exceedingly aggressive in interpreting the statute to favor its interests.
The Recess Appointments Decision Part IV: The Motivations Underlying Justice Breyer’s Practice Based Decision
CUNY staff members protesting on July 28, 2016 on campus in New York City. (Credit: Erik McGregor/Pacific Press/Alamy Live News).
The day after the Noel Canning case involving the Recess Appointments Clause came down, the Federalist Society held a teleforum conference on the issue. I was on a panel with Noel Canning’s attorney in the Supreme Court, Noel Francisco, as well as Professor Kristin Hickman from Minnesota Law School. Kristin raised an interesting point. She argued that one of the principal motivations for Justice Breyer’s majority decision relying on practice to allow a broad recess appointment power was a strong reluctance for the Supreme Court to hold that hundreds of recess appointments by Presidents had been unconstitutional. I am not sure that…
The Recess Appointments Decision Part III: How Protective Are Pro Forma Sessions Against Improper Recess Appointments
CUNY staff members protesting on July 28, 2016 on campus in New York City. (Credit: Erik McGregor/Pacific Press/Alamy Live News).
While people who favor the original meaning of the Recess Appointments Clause were disappointed by the majority decision in Noel Canning, some people argue that at least the Court’s holding as to pro forma sessions puts a significant check on executive power. According to this view, the Senate can simply hold pro forma sessions every 3 days to prevent the President from making a recess appointment. That would prevent recess appointments, because the Supreme Court held that a recess of more than 3 days and presumptively more than 10 days is required to make a recess appointment.
Moreover, these people argue that even if the party opposing the President only controls the House and not control the Senate, it can still block recess appointments. Since neither house can adjourn for more than 3 days without the consent of the other house, the House of Representatives can force the Senate to meet every 3 days (by the House refusing to adjourn for more than 3 days). The party opposing the President can therefore prevent recess appointments so long as it controls one house. Thus, even if the Supreme Court’s holding regarding pro forma sessions conflicted with the original meaning, it at least constrains the Presidents otherwise excessive recess appointment power.
While there is something to be said for this view, it is by no means clear that the pro forma sessions will work to constrain the President. There are two issues here: how many houses the party opposing the President needs to control and whether a single Senator from the President’s party can defeat the pro forma session procedure.
The Recess Appointments Decision Part II: Pro Forma Sessions Are Not Real Sessions
CUNY staff members protesting on July 28, 2016 on campus in New York City. (Credit: Erik McGregor/Pacific Press/Alamy Live News).
In my first post, I noted that I thought Justice Breyer’s decision was wrong on all three grounds based on the original meaning of the Constitution. This may surprise some people who believe that the third ground of the Court’s decision – that the pro forma sessions were real sessions and therefore the recesses were not long enough to justify a recess appointment – was a favorable rebuke of the Obama administration. But in my view, the majority’s third ground is probably not in accord with the original meaning.
I have come to this position over time. But the final straw was Justice Breyer’s opinion, which ironically convinced me that the pro forma sessions were not real ones (ironic since he was arguing the opposite position). It is significant that Justice Scalia and the other concurring justices did not join this part of the opinion, suggesting that they may agree with my doubts about this conclusion.
A pro forma session involves two or three Senators meeting for a minute or two. Justice Breyer argues that the Senate is entitled to deference as to its conclusion that the Senate is in session and therefore the Court and the President must treat these sessions as real ones.
But this is mistaken. The Constitution establishes that a majority of the Senators constitutes a quorum. Therefore, one or two Senators cannot operate the Senate. If the Senate was in a recess, a meeting of two Senators would not end the recess. The Senate as a whole would lack capacity to conduct business.
Posner on Originalism and Recess Appointments
CUNY staff members protesting on July 28, 2016 on campus in New York City. (Credit: Erik McGregor/Pacific Press/Alamy Live News).
At Slate, Eric Posner wrote a post criticizing the originalist interpretation of the Recess Appointments Clause. In the post, Posner discusses my paper presenting originalist evidence, but argues that originalism is a bad way to resolve this issue. The post was put up about 10 days ago, but I didn’t see it then. Posner’s argument is that, whatever the original meaning of the Recess Appointments Clause, the question at the Supreme Court today should not be decided based on originalism: Is the right way to resolve a 21st-century controversy to place the minutiae of the 1790s under a magnifying glass and ignore…
Recess Appointment Oral Argument
CUNY staff members protesting on July 28, 2016 on campus in New York City. (Credit: Erik McGregor/Pacific Press/Alamy Live News).
Yesterday, the Supreme Court heard argument in the Recess Appointments Case. According to reports, the argument did not go well for the government. As someone who has spent considerable time reading the Executive Branch’s jurisprudence in this area and felt like he was walking around in Alice’s Wonderland, it was refreshing to see the skepticism expressed by some of the Justices: Both Justice Ginsburg and Justice Kennedy told Don Verrilli that the government’s argument – which would allow recess appointments during any break, not just the ones between sessions – needed a “limiting principle,” to prevent the president from making recess appointments…
The NLRB Goes Down
CUNY staff members protesting on July 28, 2016 on campus in New York City. (Credit: Erik McGregor/Pacific Press/Alamy Live News).
The much-awaited argument in Noel Canning, arising over purported recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau, was a bit of a yawner (transcript here). And it won’t be a big test of originalism, textualism, etc: If (as here) the government doesn’t have an argument from text, or structure, or history, or functionality, what does it matter? And if the Senate was in session anyhow, why are we arguing about recess appointments? You don’t have to follow the argument. Just count the lines in the transcript: the justices let Miguel Estrada, who made that…
Recess Appointments: A Final Quick Pre-Argument Note
CUNY staff members protesting on July 28, 2016 on campus in New York City. (Credit: Erik McGregor/Pacific Press/Alamy Live News).
NLRB v. Noel Canning is to be argued tomorrow (or today, depending on when you read this). The Court has ordered extended argument (90 minutes), and there’s an interesting twist: fifteen minutes on the respondents’ side have been given to Senator Mitch McConnell and 44 other Senators. Appearing as amici, the Senators insist that the Senate was in fact in session when the disputed recess appointments were made. If that’s right, the two questions that have engendered so much heated dispute—the question of intra- versus inter-session “recess(es),” and the question of whether the executive power to make such appointments covers…
