Author: David Arkush

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Originalism in Noel Canning, Part II (“Happen”)

My last post talked about the original meaning of “recess.” Next is the “happen” question: For President to fill a vacancy during a recess, must the vacancy arise during the recess, or can it pre-date the recess? The question has been framed as whether “happen” in the Recess Appointments Clause means “arise” or “exist.” (As a reminder,the Clause grants the President power to “fill up all Vacancies that may happen during the Recess of the Senate.”) The majority may have the better of the argument here as well.

To the modern ear, “happen” sounds like it only means “arise.” But what about to the eighteenth-century ear? As the majority observes, Thomas Jefferson opined in 1802 that the phrase was susceptible of either meaning. Perhaps more important, since his direct claim might have been politically motivated, Jefferson actually used “happen” to mean “exist” in his own correspondence. Although Alexander Hamilton endorsed the arise view, he called it only the “most familiar and obvious sense” of the language, which is different from saying it is the exclusive meaning. Likewise, Attorney General Wirt opined in 1821 that, although “arise” was the more natural reading, “exist” was possible as well, “without violence to the sense.”

Dictionaries suggest that “exist” was a valid, albeit minority, meaning of “happen.” One ratification-era dictionary gives the definition “to be” (others provide only the arise meaning). The Oxford English Dictionary’s third definition is “to chance to be,” and it provides usage examples from before and shortly after the late eighteenth century. Ratification-era constitutions also give some support to the “exist” reading. Most, if not all, of the constitutions that grant recess appointment powers do not restrict them to vacancies that arise during a recess. If there was a gestalt sense of how recess appointment powers should operate, then, it appears to have reflected the “exist” view.

There’s more, but let’s move on to the concurrence. To support the “arise” view, it cites two early attorneys general, an 1803 scholarly interpretation, and early congressional practice. Not bad. One can quibble with some of this evidence—I’ll pick on one piece in a moment—but for now let’s assume it’s sound. Does it establish that the “arise” view was the sole meaning of the word happen? It seems hard to reach that conclusion unless one is compelled to choose an exclusive meaning for the term. Otherwise, it’s hard to justify dismissing the contrary evidence, which includes the views and usage of Thomas Jefferson, hardly an unlettered member of the founding generation. (The concurrence, in an unfortunate moment of overstatement, says that “no reasonable reader” would have understood the Clause the way Thomas Jefferson apparently did.)

If one must choose a single definition, then of course it’s reasonable to conclude that “arise” was the more natural or majority meaning. Was the Court compelled to choose? I don’t see why it was, and the concurrence doesn’t offer a reason. The Clause’s drafters had to balance the need for expediency against the desire for Senate involvement—the potential need to fill offices urgently, regardless of when vacancies arose, against the possibility of less Senate involvement than one generally might desire. It is not clear that they must have erred one way or the other. Neither choice is unreasonable, much less absurd.

Ultimately, then, I think the majority’s conclusion better reflects what we know of original meaning. The evidence suggests that the word was ambiguous, susceptible to two different readings. One seems clearly to have been a minority meaning, to be sure. But in the absence of a compelling reason to pick an exclusive position, it seems the proper approach as a matter of original meaning is to recognize that the text had two possible meanings, and leave it at that.

Now for the evidentiary quibble. As a general matter, I think the evidence for the “exist” view is weaker than commonly believed, and originalists should consider it more carefully. But here I’ll mention just one point: The concurrence leads with the opinion of Edmund Randolph, the nation’s first attorney general, and it seems to rely on him heavily. In an apparent attempt to bolster Randolph’s value as a source, the concurrence says that Randolph was “a leading member of the Constitutional Convention.” What the concurrence fails to note is that Randolph refused to sign the Constitution in part over objections to the presidential appointment power and recess appointment power. By the Virginia Convention, he had come to support ratification, but he still expressed hope that the appointment power and recess appointment power would be excised from the document, at least with respect to judges.

Is Randolph a reliable source of original meaning? Maybe. Or maybe when he had the opportunity to set precedents as the first attorney general, Randolph pursued his private agenda—including his opposition to recess appointments—irrespective of original meaning. Perhaps even contrary to original meaning.

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Originalism in Noel Canning, Part I

One striking aspect of Noel Canning is the unexpected role that original meaning plays. The majority emphasizes historical practice and the policies embedded in the relevant constitutional provisions; the concurrence urges a sharp focus on original meaning. Yet the majority opinion comes very close to reflecting what we know about the original meaning of the Recess Appointments Clause, while the concurrence has little basis in the evidence on original meaning.

Let’s start with the “recess” issue. In a forthcoming article, I demonstrate that the evidence cuts overwhelmingly against the notion that the original meaning of “recess” (or “the recess”) was limited to “inter-session” breaks. The majority fails to cite some useful evidence on this point, but its analysis is sound. It recognizes that ratification-era dictionaries do not distinguish between intra- and inter-session recesses and that the word “recess” was used broadly to refer to all types of legislative breaks. Also, historical practice has long reflected an understanding that “recess” applies to both intra-session and inter-session breaks.

The concurrence claims there is “strikingly little support” for the assertion that “the recess” was used to refer to intra-session breaks. But by my count, nine ratification-era constitutions use the term without limiting it to inter-session breaks, as do many state legislative enactments. There are executive-branch examples as well, such as when the Governor of New Jersey sent a message to the legislature in 1754 referring to a coming intra-session break as “the Recess.” Thomas Jefferson’s 1801 Manual of Parliamentary Practice and Blackstone’s Commentaries also use “recess” in a broad sense. In fact, there is virtually no evidence that “recess” or “the recess” was restricted to inter-session recess. The usage examples put forward to support that position usually refer to particular recesses that happen to have been inter-session. Of course, the fact that inter-session recesses were called “the recess” does not mean that other recesses weren’t also called “the recess.” As we have seen, they were.

Beyond the usage examples, a bit of analysis carries the point further. In the ratification era, New Jersey enumerated its sessions annually. During an annual session, the legislature might hold multiple work periods, which it called “sittings.” Sittings were separated by recesses that modern observers would call “intra-session” breaks. This practice looks a lot like the contemporary Senate’s, except that the New Jersey legislature had an official name for its intra-session work periods—sittings—and the modern Senate does not (colloquially, senators call them “work periods”). By contrast, Massachusetts called each sitting a new “session” and often had multiple sessions in a single year. As a result, in modern parlance an identical break would be “intra-session” in New Jersey and “inter-session” in Massachusetts. Given this variation in state practice, it seems unlikely that the Constitution adopts any particular definition of “recess” or “session.” How could we know whether it adopted that of New Jersey or Massachusetts? Wouldn’t the ratifiers in each state have viewed the Clause differently?

The concurrence ignores virtually all of this evidence. It dismisses New Jersey’s usage in a footnote without any clear explanation.

The next question regarding “recess” is how to cabin the term so that it doesn’t extend to, say, lunch breaks. There are a few possible responses. One is to take the Constitution at face value and hold that because it doesn’t set a limit, the courts needn’t worry about generating one. It is not obvious that the courts must limit recesses rather than permit the political branches to negotiate the term, constrained by the political process and the ballot box.

A similar response is to recognize that the Senate controls the “Rules of its Proceedings” and therefore can define its recesses, within reason, to protect itself from executive encroachment.

A final response is to identify features of breaks that make them constitutionally significant “recesses.” Both the majority and the concurrence take this route in Noel Canning. The concurrence decides that inter-session breaks count and intra-session breaks do not, despite scant textual or historical support for that position. The majority decides that three days is too short, borrowing arbitrarily from the Adjournments Clause, and nine days is presumptively too short, noting that in practice recess appointments have rarely been made during shorter breaks.

In my view, a better and likely more faithful position is that recesses are breaks between Senate work periods—times when senators take a break from the ordinary course business for a week or more. Here, I rely less on evidence of original meaning—we simply don’t have enough evidence to be confident that any particular meaning was correct—and more on reasoning about what information the Framers had before them and what fits with their purposes. Oddly, people tend to miss that the Framers could not have predicted future Senate practice and therefore could not have written the Recess Appointments Clause with an expectation of annual sessions. In fact, there were divergent views on what the Senate would do. Some thought it would rarely meet; others thought it would remain in session almost continually. We also lack a record of what anyone thought the Senate would call its work periods or how it might enumerate them. What the Framers surely knew, though, was the practice of state legislatures. The “work period” concept accommodates both the Massachusetts session and the New Jersey sitting. It is also the most obvious, know-it-when-you-see-it candidate for what constitutes a recess of significance as opposed to a mere lunch break or weekend. In fact, unlike those insignificant breaks, senators have long referred to the times between work periods as “recesses,” often with more specific names like the “August Recess” and the “Easter Recess.” Most important, breaks between work periods are times when senators might not be readily available.

The majority’s nine-day presumptive minimum comes close to this “work period” view, although it arrives there by relying on historical practice. The convergence may not be coincidental. A break between work periods is essentially a week or more off, which means a minimum of nine days. Perhaps, then, historical practice reflects the work period view in action—and perhaps original meaning and historical practice have been in harmony, not conflict.

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Pragmatism and Formalism in Noel Canning

This is a guest post from David Arkush of the University of Richmond School of Law. He has written and article and an essay on the Recess Appointments Clause, and he is joining us to blog about NLRB v. Noel Canning.

I plan to comment on a few different aspects of NLRB v. Noel Canning in the coming days—the extent of formalism and pragmatism in the majority opinion, the roles of historical practice and original meaning, the quality and nature of the originalist analysis, and a way in which the Court could have reached a similar conclusion by slightly better means.

To take the first of those issues, the decision is already being characterized as a victory for pragmatism over formalism. I think that’s an overstatement. The pragmatism is clear enough. The Court’s foremost pragmatist, Justice Breyer, wrote the opinion, and it steers a middle path between polar extremes. The Solicitor General argued that the President has the power to determine whether the Senate is in recess, a rule that would apparently permit the President to sidestep the Senate’s advice and consent routinely. Noel Canning argued that the Recess Appointments Clause authorizes appointments only during the annual recess between official Senate sessions and only for vacancies that arise during that break, a position that would virtually write the Clause out of the Constitution. Breyer, joined by Kennedy and the remaining liberals, rejects both of these arguments. The majority codifies a reasonable, pragmatic-seeming middle ground on which the political branches had more-or-less settled in recent decades: A constitutional “recess” is not limited to any particular type of break, but it has a minimum duration. Three days is too short. Nine days is also too short—unless there is a genuine, qualifying emergency.

All this said, there are striking exceptions to the Court’s pragmatism. First is the three-day minimum for recesses, which contradicts the Court’s pragmatic reasoning without a (pragmatic) justification. Three days appears to be a strict limit, with no exceptions. See Slip. Op. 19 (“We agree with the Solicitor General that a 3-day recess would  be  too  short.”). By contrast, the Court holds that ten days is only “presumptively” too short. In some “very unusual” circumstance, such as a “national catastrophe . . . that renders the Senate unavailable but calls for an urgent response,” the President could make unilateral appointments during a break shorter than ten days but longer than three. Id. at 21. The Court’s reasoning here applies no less to three-day breaks. One might respond that the Senate can reconvene more readily on a mere weekend because Senators are still in Washington. But that is mistaken. Many senators, if not most, go home on the weekends.

So what is the justification for the three-day minimum? Will Baude might say it’s a countervailing pragmatic concern—the Court is preventing the president from making appointments on “nights and weekends.” But the majority doesn’t say that. To the contrary, it expresses some skepticism that the President would engage in unbridled abuse, id. at 25, and in another context, some faith that the political branches can usually work things out among themselves despite inevitable frictions, id. at 39-40. The Court says only that a three-day recess is de minimis, analogizing to the Adjournments Clause, which requires each house of Congress to obtain the other’s permission before adjourning for more than three days. Id. at 19-20. So the majority’s decision is pragmatic to a point—three days—before it tosses out its pragmatic reasoning and draws a hard rule that apparently rests on a loose constitutional analogy. This move isn’t formalist. But it’s an abrupt, unexplained, and inviolable exception to the Court’s otherwise pragmatic reasoning. Perhaps it’s the result of an internal compromise.

Second, the Court’s analysis of the Senate’s pro forma sessions is unambiguously formalist. The Court states that it must defer heavily to the Senate’s authority to determine “how and when to conduct its business,” Slip. Op. at 34, a conclusion that flows directly from the Constitution, which expressly grants the Senate control over “the Rules of its Proceedings.” Then the Court reads the Senate rules carefully and strictly, concluding that under its own rules, the Senate’s pro forma sessions were sessions as a matter of law. Slip Op. at 35-59. It expressly rejects the Solicitor General’s request that the Court “engage in a more realistic appraisal of what the Senate actually did.” Id. at 38.

I was pleased to see the Court take deference to the Senate seriously—at least on the question of pro forma sessions. Gerard and I were some of the lone voices arguing that the Court should defer to the Senate’s view of its own proceedings. Gerard argued that the Court should take the Senate at its word when it said it held sessions, and therefore the appointments were invalid. I argued that the Court should look beyond procedural appearances and recognize that, in this instance, deference to the Senate likely meant approving the appointments. The Senate majority appears to have supported the appointments. It held pro forma sessions not because it wanted to block them, but because the Speaker of the House of Representatives forced it to (moreover, in my view, it is probably unconstitutional for the House to interfere with appointments in this manner). But the fact that I had to qualify my position with “likely” reveals its major shortcoming. The Court reasonably declined to question official Senate records, which could be a messy and uncertain business. It cited both Marshall Field & Co. v. Clark and United States v. Ballin in holding that it should take official Senate records at face value. In short, it sided with Gerard. I think he has the honor of being the sole commentator to nail this point.

And it was a critical point. These two aspects of the opinion—the hard, three-day minimum for recesses and the formalist decision that pro forma sessions count as “sessions”—were actually adequate to resolve the case. The Court could have left open the questions regarding the type of recess and the timing of vacancies. I’ll turn to those issues in a future post, but in a sense they are surprisingly formalist as well. Despite the majority’s emphasis on historical practice, it comes much closer than the dissent-like concurrence to following what we know about the original meaning of the word “recess,” and possibly “happen” as well.