Originalist Scholars Amicus Brief in NLRB v. Noel Canning

Last week, I joined with Michael Ramsey (San Diego) Michael Rappaport (San Diego), Chris Green (Mississippi), Gary Lawson (Boston University), John McGinnis (Northwestern) and Todd Zywicki (George Mason) on an amicus Brief of Originalist Scholars in NLRB v. Noel Canning.  Much of the evidence cited is taken from Michael Rappaport’s path-breaking 2005 article, “The Original Meaning of the Recess Appointments Clause,” 52 UCLA L. Rev. 1487 (2005).  You will note that Mike published his originalist critique of current practice during the mid-point of the Bush administration.

Of course, the merits of our legal analysis can only be fully assessed after considering counter-arguments and contrary evidence presented by those who may disagree.  In this brief, we consider the originalist arguments presented by the government. (In their brief, the Constitutional Law Scholars also powerfully respond to other non-originalist arguments based on subsequent practice. Will is excerpting the brief here.) [To read the summary of the argument click Continue Reading below.]

Our brief not only provides support for the decision reached by the Court of Appeals. It exemplifies how an original public meaning analysis is a legal analysis of the meaning of language at the time of its enactment that is well within the competence of lawyers and judges to present and assess.  It also illustrates how originalist scholarship is necessary for high quality originalist judicial decision making. It is unrealistic to expect judges to do the work that Mike and others have done on the original meaning of the Recess Appointments Clause.  But judges are quite competent to assess the comparative strength of this evidence when weighed against contrary arguments, the way they weigh other evidence that is presented to them in our adversary legal system.  Contrary to the common complaint that legal scholars produce writings of value only to themselves, originalist scholars of all stripes provide an essential function for the accurate interpretation by courts of the text of the Constitution.


Here is the Summary of the Argument as presented in the brief:


The Appointments Clause provides for appointment of officers of the United States by the President with the Senate’s advice and consent. Art. II, § 2, cl. 2. As Alexander Hamilton explained, it is the “general mode of appointing officers of the United States,” The Federalist No. 67, at 409 (Hamilton) (Clinton Rossiter ed., 1961), and serves as an “excellent check” upon “unfit” presidential nominations. The Federalist No. 76, at 457 (Hamilton) (Clinton Rossiter ed., 1961). Although the Framers understood that vesting appointments jointly in two entities would be slower and potentially more contentious than granting a unilateral power, they decided the benefits outweighed the costs.

The Recess Appointments Clause, which gives the President “Power to fill up all Vacancies that may happen during the Recess of the Senate,” Art. II, § 2, cl. 3, is an “auxiliary method” of appointment designed for the long breaks the Framers anticipated between legislative sessions. Federalist 67, at 409. It contains two important textual limitations that prevent it from displacing the Appointments Clause as the “general mode” of appointment: (1) the vacancy must arise (“happen”) when the Senate is in recess; and (2) “the Recess” refers only to the break between legislative sessions. See Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487 (2005); Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013).

Petitioner would read the Recess Appointments Clause to allow almost complete circumvention of the Appointments Clause by defining “happen” to mean “exist” (rather than “arise”) and by labeling every legislative break a “Recess” (perhaps subject to some minimum duration of unclear length and derivation). Combining these arguments, Petitioner would allow the President to fill any vacancy that exists simply by waiting for the Senate to take a break of brief duration.

Under the Constitution’s original meaning, Petitioner is wrong on both counts. The original meaning of “happen” in the Recess Appointments Clause is “arise.” That is consistent with the prevailing eighteenth-century dictionary definition. See, e.g., Samuel Johnson, A Dictionary of the English Language (1755) (defining “happen” only as “to fall out; to chance; to come to pass”). Reading “happen” to mean “arise” avoids making the phrase “that may happen” in the Recess Appointments Clause superfluous (as it would be under Petitioner’s definition). The Constitution’s other uses of the word “happen”—in the Senate Vacancies Clause, Art. I, § 3, cl. 2, and the House Vacancies Clause, Art. I, § 2, cl. 4—both evidently use “happen” to mean “arise.”   This reading is also consistent with the purpose of the Recess Appointments Clause, which was to provide for appointments during the anticipated long intersession breaks without undermining the advice-and-consent procedure as the general mode of appointment. See Rappaport, 52 UCLA L. Rev. at 1500-01.

Key figures from the founding generation, including Hamilton, Attorney General Edmund Randolph, and commentator St. George Tucker, read the Recess Appointments Clause to cover only vacancies that arose in the recess. The practice of the Washington administration and the pattern of legislation in the early post-ratification era confirm this reading. See id. at 1522-25. Other founding-era sources, including eighteenth-century state constitutions, also used “happen” to mean “arise” in the context of vacancies. E.g., Mass. Const., Pt. 2, Ch. I, § II, Art. IV (1780); N.H. Const., Pt. 2, Art. 34 (1784).

Petitioner argues that the President must be able to fill vacancies that exist during the recess, even if they arose earlier, or offices may remain vacant. But these concerns are overstated. If vacancies arise near the end of the session, the President can urge the Senate to act quickly or extend its session (or may even call the Senate back into session). Moreover, Congress can redress the matter by legislation. For inferior officers, Congress can give the President sole power of appointment. Art. II, § 2, cl. 2. And Congress can provide for what are now known as acting appointments, whereby an existing officer can perform the duties of a second office when the latter becomes vacant. See Rappaport, 52 UCLA L. Rev. at 1514. Congress has routinely employed both strategies to address late-session vacancies. See Noel Canning, 705 F.3d at 511.

Second, the original meaning of “the Recess” in the Recess Appointments Clause is the break between legislative sessions. Eighteenth-century language provides two possible semantic meanings of “recess”: it could mean either generically any break in the legislature’s conduct of business or specifically the break between sessions. The Constitution’s text, structure, and purpose show that it has the latter meaning in the Recess Appointments Clause.

Pre-ratification materials, including state constitutions, used “recess” to mean the time that the legislature was not in session. E.g., Mass. Const., Pt. 2, Ch. II, § I, Art. V (1780). Hamilton in Federalist 67 and post-ratification congressional statutes also used it this way, pairing the “recess” and the “session” as two distinct periods. Because the Framers anticipated long intersession breaks and only short breaks within sessions, it makes sense that they would establish a special appointments process only for intersession breaks. Reading “the Recess” to mean any break in legislative business, even of short duration, makes little sense in terms of the concerns of the Framers, who understood that offices would be vacant for temporary periods as a result of the ordinary advice-and-consent requirement.

Further, other aspects of the Constitution’s text support the narrower meaning. The Constitution uses another word, “Adjournment,” to refer to any break in legislative business. The only way to explain the Constitution’s use of both “Adjournment” and “Recess” is to read “Recess” to mean the break between sessions. Moreover, the Recess Appointments Clause itself indicates that it addresses the break between sessions by providing that recess appointments last until “the End of [the Senate’s] next Session.” Art. II, § 2, cl. 3. If “the Recess” is read to mean any break in legislative conduct of business, appointments would implausibly last from the date of the appointment, through the end of the existing session, through the intersession recess, and through the entire subsequent session.

Petitioner appears to suggest an intermediate meaning of “Recess” which would include intrasession breaks of sufficient length that the Senate is “practically unavailable” to consider nominees. However, there is no basis in any eighteenth-century meaning for this definition and it is inconsistent with founding-era materials’ pairing “the session” with “the recess.” Further, it is hopelessly indeterminate. There would be no reliable way to determine which breaks would count as recesses and which would not. Tellingly, Petitioner does not provide any firm definition, and in the past the Executive Branch has indicated that breaks as short as ten days or even less can qualify, even though it is implausible that the Framers would have been concerned about unfilled vacancies of such short duration.

You can read the whole brief here.

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