The Heien Case: Not an Outrage.

The case of Heien v. North Carolina is getting a lot of attention, and a good deal of narrative journalism is getting a large number of folks riled up about it. Concerned. “Ignorance of the law is no excuse for citizens, but now it is for cops?” There is an unease. “This will make it easier for police to investigate anybody they think is suspicious.” And there is partisan rancor. “This is another baffling opinion from the Roberts Court.”

Fortunately, all that hand-wringing can be directed in a useful direction. We can all go read the actual opinion and understand it for ourselves. We’re likely to agree, if we do so, that this isn’t the outrage we've been hearing about.

These are the facts of the case.

Officers became suspicious of a vehicle and followed it briefly, when they observed that one of the brake lights wasn’t working. Now, North Carolina law say that all vehicles must be “equipped with a stop lamp on the rear of the vehicle…. [which] may be incorporated into a unit with one or more other rear lamps.” A nearby provision says more about the lights on cars: “all originally equipped rear lamps” must be functional. Because “all originally equipped rear lamps” were not functional on this car, the police pulled the car over.

He checked their license and registration, and said that as long as all that was good, they would only receive a warning ticket, and that is all they did receive. But the officer’s original observation – that the driver seemed “very stiff and nervous” – had been spot on. These two guys appeared very nervous. The cop asked if they’d mind answering a few questions. They consented, and gave stilted, contradictory answers. Again, spot on. The officer asked for permission to search the car. They granted it, and the officer found a baggy full of cocaine in a duffle bag. The cocaine was used as evidence in the case against Heien (one of the two guys in the car) for cocaine trafficking.

Since all this, a court has found that having a faulty brake light is actually perfectly legal under North Carolina law. Despite this being a brand new discovery of a trixie law which I'll explain later, Heien has asked the Court to hold that the original traffic stop was therefore an unreasonable search in violation of the Fourth Amendment.

This month the United States Supreme Court held (8-1) that the “reasonableness” required of the Fourth Amendment allowed not only for “reasonable” errors in appraisal of facts, but also for reasonable errors in appraisal of the applicable law. This doesn’t mean you can be punished for erroneous understanding of the law. It doesn’t mean officers aren’t required to have a good understanding of the law. It only means that there is indeed scope for reasonable error of law when we address what is a reasonable search under the Fourth Amendment.

So what’s this case about?

Well, when you get right down to it, laws are harder to write and to interpret than you’d think. In this case, we had to take this case to two courts to determine that a brake light is not part of the “originally equipped rear lamps” that are required to be functional. Now, I personally thought a brake light – a “stop lamp,” as the lawyers call it – was a “rear lamp.” And I am not alone. Every officer in Carolina thought your brake lights were supposed to work. Likely, every legislator thought so. But, because a deep analysis by several judges determined that the text and structure of the relevant provisions directed otherwise, it is now known that in North Carolina a stop lamp is not a rear lamp, and you only have to have one brake light working to be legal.

As a result, the guys in this case – the drug traffickers – say that they were doing nothing wrong and there was no probable cause to pull them over. Therefore, they ask that the evidence obtained from this wicked violation of the Fourth Amendment be excluded from evidence, which would mean they go free.

I hope it is clear already that we aren’t talking about cops who don’t know the law. Cops who are willfully ignorant. Cops thinking things that plainly aren’t so. This is a stop that any good cop would have made. And we already allow cops to make reasonable (hint: that word really means something to the Court) errors of fact. What changed because of this decision is that it is now on record there exists such a thing as a reasonable error of law as well. The court held 8-1 that this was such an error. Therefore, the officer had probable cause to pull over this plainly guilty criminal, and the evidence against him should be admissible in court.

So, what’s the difference between a reasonable mistake of fact versus law?

We generally agree that police are asked to make on-the-moment judgments in emerging situations of confusion and many unknowns. As a result, it is long accepted that a cop can reasonably pull you over due to a mistaken appraisal of the facts, and any evidence incidentally gathered would be admissible. The Fourth Amendment requires not perfection, but reasonableness.

People worry that the law, though, is not a quickly emerging thing. We are supposed to just study and know it. So it seems wrong to give police a pass on correctly understanding the law. The Supreme Court gave us a good thought experiment to address just this issue.

Hypothetical Example:

A recently passed local ordinance prohibits “vehicles” in city parks. An officer sees a Segway zooming through the park at about 10 miles per hour, and has to decide what to do. He stops the Segway rider and explains that vehicles are not allowed in the park. He’s only getting a verbal warning, but please leave the Segway at home next time and be careful. As they have this dialogue, the officer notices that the rider keeps glancing nervously at the bag hanging from the Segway, and also to the nearby woods. The officer asks for permission to search and finds a bloody child’s shoe. The Segway rider is ultimately charged, tried and convicted for the rape and murder of a 6-year-old boy.

On appeal, the Segway rider argues that a Segway is not a “vehicle” under the terms of the local ordinance. Now, this takes some debate and goes through six judges before it is indeed determined that a “vehicle” under the local ordinance was only those vehicles authorized elsewhere in the state code for operation on public roads, and did not include Segways. As a result, the Segway rider says the officer had no probable cause to stop him: he should have known the law didn't forbid Segways, and so the fruit of the stop cannot be used as evidence against him.

Would you exclude the stop, the bloody shoe, and all downstream evidence and let the plainly guilty rapist and murderer go free? Would you say the stop was an unreasonable stop?

Bueller?

Sometimes it is important to get back to the functional results of these decisions. So let’s do that.

Can a cop pull you over or ask you questions based on an error of law?

Of course they can. Always could. And even if they were pretty wrong about the applicable law you have little recourse. Officers acting in good faith have qualified immunity against prosecution. As long as they weren’t violating your civil rights, acting in poor faith, or way outside the bounds of professional conduct, you already are subject to the occasional inconvenience due to police error.

Does this increase the chances of questioning or a search?

Nope. The two men consented to both: absolutely voluntary and they don’t disagree. Cops ask questions on the streets all the time. It is some of the best work they do.

So how does this change my life?

It’s just this: the Fourth Amendment in relevant part says that “the right of the people to be secure … against unreasonable searches … shall not be violated.” This cop was brilliant, or lucky. His initial sense that this driver was stiff and nervous was spot on: the dude was in fact trafficking drugs. And the cop’s understanding of the law was not stupidly ill-informed. I wonder, in a survey, how many judges and officers would have told you that stop lamps aren’t legally rear lamps, before this case. Precious few. So when a cop doing such a great job, with a sound understanding of the law that put him solidly in a pack with most every legal mind in the state, is ultimately shown to have been in – colloquially –reasonable error about the law, what do we do? Do we punish society and grant a windfall to the bad guy, excluding from evidence the fruits of the search? Hmmm……..

Oh, and by the way, the Supreme Court was sort of unanimous.

In truth, the question in the Heien case is even more precious than that. For if asked “in cases like this, should the cocaine be excluded from evidence,” the United States Supreme Court would answer “no.” Unanimously. You read that right. All nine justices think this cocaine should able to be used as evidence in cases like this. Because, as Sotomayor noted approvingly in dissent, most states have laws which allow for good faith exceptions to the exclusion rule, so that innocent mistakes by officers acting in good faith don’t result in plainly guilty criminals going free. North Carolina has no such law, but we are arguing principals, not brass tacks.

So before you get outraged that cops don’t have to be perfect, that the Roberts Court is eroding your rights, that you have less chance of getting away with a child murder, take this seriously. Read the actual opinion of the Court. Read the concurrence of Kagan and Ginsburg. Read Sotomayor’s dissent. Then get outraged. Or conclude – reasonably – that some folks would rather you be upset than educated.

Intrasession Recess Appointments -- Canning v. NLRB

This is the fourth and final post on this topic.

In the previous posts we provided background, then discussed the text of the Constitution and a methodology for comparing arguments, and – in the penultimate post – aligned the Eleventh Circuit opinion from 2004 with the rebuttals of its Dissent, and the Fourth Circuit in January 2013.

This final post is not about the rebuttals of the Dissent and Fourth Circuit, but about their own arguments, answering in the Negative: that the President does not have authority to issue a recess appointment during an intrasession break. They went much further: the law of the Fourth Circuit is now also that a recess appointment can only be made for vacancies that occur during the recess. And you cannot wait for a recess, or a later recess, to make an appointment that the Senate opposes. I prepared an analysis of these arguments as well, but will save the gentle [sic] reader from this further torture.

Unanimous Opinion of the Fourth Circuit (Canning v NLRB, 2013)

PREFACE:

·         In this circumstance, the Senate was operating under a unanimous consent agreement.

o   They had a handful of Senators stay in town to hold pro forma sessions every three days.

o   The resolution called for “no business” to be conducted during these sessions.

(They didn’t want to authorize three Senators to pass laws all alone.)

o   Business was nonetheless conducted during this intrasession break:

o   The Senate passed an extension to payroll tax rates.

o   They convened the session of the 112^th Congress.

o   It is plain that the Senate was available for business.

WORDS:

·         We start by noting an advantage to our interpretation. It is one we will come back to: “Intersessional recess” provides clear content to “the Recess”; the NLRB’s proposal, that intrasessional breaks are also subject to recess appointments, provides no minimum break duration. In theory, it allows the President to grant a commission without Advice and Consent during a lunch break.

·         Looking at the words, the definite article does make a difference.

o   One stilted example used by the 11^th Circuit to dismiss the definite article (“The dog is a quadruped”), is insufficient within the full structure of the Constitution.

o   We will look at structure in more detail.

o   The Eleventh ignored the structure and misstated the purpose of the Constitution, and then hung their hat on “the dog is a quadruped.” We must do better than that.

·         The Constitution’s consistently different usage between “adjournment” and “the Recess” reinforce giving conventional weight to the definite article. “Adjournment” is never given the definite article: “recess” is in every usage.

·         But enough about this…

STRUCTURE:

·         The structure of the clause further supports our reading, by creating a dichotomy between “Session” and “the Recess.” We can support the existence of this dichotomy in three ways:

o   “The appointment may be made in “the Recess,” but it ends at the end of the next “Session.” The natural interpretation of the Clause is that the Constitution is noting a difference between “the Recess” and the “Session.” Either the Senate is in session (and therefore available for Advice and Consent), or it is in the recess (and unavailable for Advice and Consent). If it has broken for three days within an ongoing session, it is not in “the Recess.””

o   Half of that dichotomy, the meaning of “Session” is not disputed. Nobody thinks that an intrasession, two-week break creates distinct sessions on either side of it. Since it appears that, together, “Session” and “the Recess” are exhaustive, the lack of dispute over “Session” forces the interpretation of “the Recess” as intersessional.

o   “When the Federalist Papers [No. 67] spoke of recess appointments, they referred to those commissions as expiring “at the end of the ensuing session.” For there to be an “ensuing session,” it seems likely to the point of near certainty that recess appointments were being made at a time when the Senate was not in session — that is, when it was in “the Recess.””

[This last point, from Federalist No. 67 is the strongest, logically. In fact, I think it is a sledgehammer. But it is the weakest, and placed last, because words of Alexander Hamilton outside of the Constitution must take a back seat to the words of the Constitution. This placement in the argument is good form. –Tim]

HISTORY:

·         Available evidence shows that no President attempted to make an intrasession recess appointment for the first 80 years after the Constitution was ratified.

·         Presidents made only three documented intrasession recess appointments prior to 1947: that’s three occurrences in the first 150 years of our nation.

·         Paralleling the Supreme Court’s reasoning in Printz, we conclude that the infrequency of intrasession recess appointments during the first 150 years of the Republic “suggests an assumed absence of [the] power” to make such appointments.”

[I’ll say it again, this is simply devastating to the arguments on the other side. At the end of this post, I’ve added discussions about the other point in this opinion: it holds that you also can only make a Recess Appointment if the vacancy actually starts – happens, as the Constitution says – during the recess. You cannot wait for a recess. In support of this, the opinion rallies a long list of high-caliber early sources with a clear and consistent understanding. Recent practice gets thrown off the see-saw when all of this evidence comes to sit down. –Tim]

PURPOSE:

·         Recess appointments are an auxiliary to Advice and Consent:

o   To avoid government paralysis in those long periods when senators were unable to provide advice and consent, the Framers established the “auxiliary” method of recess appointments.

o   They put strict limits on this method, requiring that the relevant vacancies happen during “the Recess.”

o   It would have made little sense to extend this “auxiliary” method to any intrasession break, for the “auxiliary” ability to make recess appointments could easily swallow the “general” route of advice and consent.

o   The President could simply wait until the Senate took an intrasession break to make appointments, and thus “advice and consent” would hardly restrain his appointment choices at all.

·         The alternative fails:

o   To adopt the Board’s proffered intrasession interpretation of “the Recess” would wholly defeat the purpose of the Framers in the careful separation of powers structure reflected in the Appointments Clause.

o   As the Supreme Court observed in Freytag v. Commissioner of Internal Revenue, “The manipulation of official appointments had long been one of the American revolutionary generation’s greatest grievances against executive power, because the power of appointment to offices was deemed the most insidious and powerful weapon of eighteenth century despotism.”

o   In short, the Constitution’s appointments structure — the general method of advice and consent modified only by a limited recess appointments power when the Senate simply cannot provide advice and consent — makes clear that the Framers used “the Recess” to refer only to the recess between sessions.

LACK OF ALTERNATIVES:

We consider and reject alternatives to our interpretation.

• Any break (lunch break, dinner break):
• Whatever “the Recess” can mean, it cannot be made to mean this.
• This would be no separation of powers at all.
• Some practical period of time, like 10 or 20 days:
• As the Supreme Court has observed, when interpreting “major features” of the Constitution’s separation of powers, we must “establish high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.” Plaut v. Spendthrift Farm, Inc.,

• Adjournment of more than 3 days, pursuant to the Adjournments Clause:
• The Adjournments Clause and the Recess Appointments Clause exist in different contexts and contain no hint that they should be read together.
• Nothing in the text of either Clause, the Constitution’s structure, or its history suggests a link between the Clauses.
• Without any evidence indicating that the two Clauses are related, we cannot read one as governing the other.
• We will not do violence to the Constitution by ignoring the Framers’ choice of words.
• “The Recess” is to be interpreted by the President:
• This will not do. Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.
• The checks and balances that the Constitution places on each branch of government serve as “self-executing safeguard[s] against the encroachment or aggrandizement of one branch at the expense of the other.” Buckley v. Valeo, 424 U.S. 1, 122 (1976).
• An interpretation of “the Recess” that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction.
• This cannot be the law.

PRACTICE:

• As to practical consequences of this ruling, Congress knows how to solve the problems caused when Senatorial Advice and Consent is unavailable.
• And a President knows how to get work done in an emergency.
• If work is urgent, the President has all the more reason to nominate an individual who can gain the consent of the Senate.

BONUS!!!!

Further held: A recess appointment is available to the President only when the Vacancy arises during the recess.

• The vacancy must actually happen – arise, by death or resignation, or disqualification, for instance  – during the recess. The President cannot wait until a recess to fill a position
• Bolstered by analysis of text first, then:
• Quoting: 1792, Edmund Randolph, the first Attorney General
• Quoting: 1799, Alexander Hamilton
• Quoting: Federalist No. 67
• Quoting: 1814 Senator Christopher Gore
• Other circuits have held to an “exist” interpretation of “happen”
• Those courts, however, did not focus their analyses on the original public meaning of the word “happen.”
• In arguing that happen could mean “exist,” the Evans majority used a modern dictionary to define “happen” as “befall,” and then used the same modern dictionary to define “befall” as “happen to be.”
• As the Evans dissent argued, “[t]his is at best a strained effort to avoid the available dictionary evidence.”
• A modern cross-reference is not a contemporary definition.
• The Board has offered no dictionaries from the time of the ratification that define “happen” consistently with the proffered definition of “happen to exist.”

Intrasession Recess Appointments -- It Went to Eleven

This is part 3 of a series on the question of intrasession recess appointments. In the previous two posts, we’ve provided the Background and a Methodology for this analysis. Our topic is the Recess Appointments Clause of the U.S. Constitution, and whether it authorizes the granting of commission by recess appointment during a short break of the Senate (an intrasession break), other than the formal recess between sessions.

In this post, we will break down the arguments of the Eleventh Circuit (Evans v Stephens, 2004), which  answered in the affirmative, thus upholding intrasession recess appointments by George W. Bush. We will match each section with point-for-point rebuttals from the Dissent, and from the Unanimous Fourth Circuit (Canning v NLRB,  2013). The Fourth Circuit addressed the Eleventh as a relevant opinion to be analyzed. Circuit Court opinions don’t carry the weight of precedent in sister circuits, but it is common to respectfully address the arguments of sister circuits. If nothing else, it improves your odds of prevailing if an inter-circuit discrepancy ends up at the Supreme Court. This one will. Soon.

We are following the methodology I laid out in the previous post. These categories (words, structure, history and purpose) don’t appear in the actual arguments. They are my structure reasonably imposed on the original. The words below are a mix of quotation and paraphrase. You want scholarly precision in citations? Not necessary: there are just three opinions here, and you’d do well to read the original if you are so inclined. My purpose is readability and clarity today. So let’s see if we can distinguish a winner.

PREFACE, from the Eleventh Circuit

• As a preface to the substantive argument, we owe a considerable deference to the Executive.
• It is not enough that we can find an alternative to the president’s interpretation; we must find that the Constitution will not admit it. That is, if the Constitution can reasonably be read to support the president’s interpretation, the judicial branch owes deference to this coequal branch of government.

[It is important to remember this: the Eleventh is not trying to find the right interpretation, or the best interpretation. They are only showing that they needn’t overrule the executive branch to avenge the Constitution. – Tim]

WORDS, from the Eleventh Circuit

• The definition of the word “recess” doesn’t have a minimum duration. The dictionary considers any “retirement; retreat; withdrawing” a recess.

• And the Constitution doesn’t distinguish expressly between inter- and intrasessional recesses.

• Some have argued that he use of the definite article (“the Recess”) indicates a singular, and necessarily excludes intrasessional recesses. This is incorrect:
• For example: “The dog is a quadruped” is a coherent English sentence which is easily understood to refer to refer to all dogs, not one dog about which we are talking.
• And the OED gives similar examples going back to the 18^th century.
• Some others have argued that the word “adjournment” is used distinct from “the Recess,” and that this means we must exclude intrasessional recesses from “the Recess.” This also is incorrect:
• “Adjournment” could also mean the parliamentary act of adjourning, not the break itself, distinct from “the Recess.”
• It is true that the Supreme Court has used the term “Adjournment” to mean a period of time, rather than the parliamentary act of adjourning, to begin a break. This does not diminish our argument, and this is why:
• The context of that case was the Pocket Veto Clause, and the Recess Appointment Clause was not being questioned, so it is not appropriate to apply that opinion to the current circumstance.
• Further, if that opinion (Wright v US) did apply, it referred to “adjournment” as a formal, end-of-session break. And it treated a recess as an intrasession break. So Wright is no good refuge for those who believe “recess” must be intersession breaks. It simply cannot guide us. As we have pointed out, that makes sense because they were discussing a different matter.

[You have to give the Eleventh a point on that last note, and perhaps throw a mendacity flag on the play. If they are correct, the other side cites Wright for the claim that adjournment is a break, not the act that starts one, but ignores the type of break indicated in the same opinion. Looking over the heads of a crowd of evidence, to pick out your friends, is naughty. Now, I’m not dropping into the cited opinions, this time. Doing so could support a mendacity flag, but won’t change the outcome of the argument. –Tim]

WORDS, rebuttal from the Fourth Circuit:

• The Eleventh relied on 20^th-century usage to dismiss the definite article
• It underestimates the significance of the definite article “the” preceding “Recess” by relying on twentieth-century dictionaries to argue that “the” can come before a generic term. See Evans, 387 F.3d at 1224–25.
• Contemporaneous dictionaries treated “the” as “noting a particular thing.” 2 Johnson, supra, at 2041 (emphasis added).

[Notice, here, that the Eleventh in fact was careful to note 18^th-century usages consistent with their interpretations. The Fourth is wrong about this one. They should instead note that while both interpretations are possible, only one is consistent with the structure, purpose and history of the Constitution. – Tim]

• The Eleventh failed to distinguish between “adjournment” and “the Recess.” They dismiss the distinction between adjournment and Recess by incorrectly arguing that adjournment is the parliamentary act of adjourning.
• In fact, the Constitution uses “adjournment” to refer generally to legislative breaks.
• It uses “the Recess” differently and then incorporates the definite article.
• Thus, the Eleventh Circuit’s interpretation of “adjournment” fails to distinguish between “adjournment” and “Recess,” rendering the latter superfluous and ignoring the Framers’ specific choice of words.

[I think this emphasis on “adjourn” v. “recess” is not where this argument is to be won or lost. While every word of the Constitution is taken to have meaning and value, this semantic argument is easily resolved by the history, structure and purpose of the Constitution. Takeaway this, though: the Eleventh cannot win positively on this issue, because they are playing defense. Their strongest claim based on words is that nothing about the words forces them to overrule the Executive branch. —Tim]

HISTORY, from the Eleventh Circuit:

·         The current instance is not an unprecedented duration for intrasession appointments.

o   There have been intrasessional appointments in far shorter breaks.

·         History is full of intrasessional appointments.

o   There have been 285 by 12 presidents.

o   One of Clinton’s was during a 9-day recess.

o   This history shows a tradition of acceptance for intrasessional recess appointments: presidents have assumed the power and the Senate has acquiesced.

HISTORY, rebuttal from the dissent:

·         A recent history – since 1947 – of unchallenged appointments doesn’t override the Constitution’s plain meaning, purpose and structure.

·         Adverse possession is a rule of property law, not constitutional law.

·         There is no statute of limitations for interpreting and enforcing the Constitution.

[Witty lines, those, intended to be quotable. –Tim]

HISTORY, rebuttal from the Fourth Circuit:

• Recent practice of intrasession recess appointments cannot overcome the weight of 150 years of prior practice under the Constitution.
• The dearth of intrasession appointments in the years and decades following the ratification of the Constitution speaks far more impressively than the history of recent presidential exercise of a supposed power to make such appointments.
• Recent Presidents are doing no more than interpreting the Constitution.
• While all branches of government must of necessity exercise their understanding of the Constitution in order to perform their duties faithfully thereto, ultimately it is our role to discern the authoritative meaning of the supreme law.

• Alleged legislative acquiescence never occurred.
• The precedent courts cited by the Eleventh all relied on supposed congressional acquiescence in the practice of making recess appointments to offices that were vacant prior to the recess.
• They did this because of a statute, passed by the Senate, that specifically permits payment to such appointees in some circumstances.
• But that statute was raising a hurdle to payment, in objection to a practice they were hostile to. It did not simply declare such appointments Kosher.
• And prior statutes refused payments of salaries to all recess appointees whose vacancies arose during the session.
• See Act of Feb. 9, 1863, ch. 25, § 2, 12 Stat. 642, 646 (stating that no “money [shall] be paid out of the Treasury, as salary, to any person appointed during the recess of the Senate, to fill a vacancy in any existing office, which vacancy existed while the Senate was in session and is by law required to be filled by and with the advice and consent of the Senate, until such appointee shall have been confirmed by the Senate”); 5 U.S.C. § 56 (1934).

[The rebuttals simply demolish the Eleventh Circuit with regards to History. Indeed, we almost need to consider a mendacity alert on the Eleventh. The Eleventh Circuit touts the absolute count of 285 appointments, without bothering to tell us what they surely knew: there were just  three intrasessional recess appointments in the first 150 years of our Nation, and numerous comments at the framing and contemporary history expressing a common understanding of the Recess Appointment Clause. – Tim]

PURPOSE, from the Eleventh Circuit:

·         The main purpose of the Recess Appointments clause is “to enable the President to fill vacancies to assure the proper functioning of our government.”

[Don’t they mean “fill up Vacancies”? Sorry. I can’t get over that odd usage in such a graceful document. –Tim]

·         This “supports reading both intrasession recesses and intersession recesses as within the correct scope of the Clause….The purpose of the Clause is no less satisfied during an intrasession recess than during a recess of potentially even shorter duration that comes as an intersession break.”

PURPOSE, rebuttal from the Fourth Circuit:

• The Eleventh provides an incomplete statement of the Recess Appointments Clause’s purpose: “to enable the President to fill vacancies to assure the proper functioning of our government.”
• This statement omits a crucial element of the Clause, which enables the President to fill vacancies only when the Senate is unable to provide advice and consent.
• As we have explained, the Clause deals with the Senate’s being unable to provide advice and consent.
• As written, the Eleventh Circuit’s statement disregards the full structure of the Constitution’s appointments provision, which makes clear that the recess appointments method is secondary to the primary method of advice and consent.
• The very existence of the advice and consent requirement highlights the incompleteness of the Eleventh Circuit’s broad statement of constitutional purpose.
• You could better meet the purpose stated by the Eleventh by omitting the Advice and Consent requirement altogether.
• The Framers must have had something else in mind.

PURPOSE, rebuttal from the Dissent:

• The purpose of the Recess App Clause was to enable the president to fill vacancies when the Senate is disabled from acting upon appointments.
• It is not intended to allow the president to install nominees the Senate opposes.

• The majority interpretation of recess appointments, including breaks as short as nine days, gives the president a new power: to repeatedly circumvent the Senate “even when the Senate is not disabled from exercising that role but is, instead, perfectly capable of exercising it.”
• The Constitution gives to the Senate the power to withhold its consent to any nomination to a federal office made by a President.
• I do not believe that the Constitution permits a President to frustrate…the careful separation of powers intended by the framers.

[Mendacity alert! Again, the Eleventh gets caught with their hand in the cookie jar, and then gets demolished. Their statement of purpose is plainly an insufficient statement of purpose. And it is critical to recognize the danger of stating purposes at all. When we do so, we are essentially fashioning new yard sticks against which we can measure the plain words of the law. When we do so with an eye to our favored interpretation, we are question-begging. The Eleventh’s construction appears designed to allow them to dismiss a separation of powers. – Tim]

CONCLUSION, from the Eleventh Circuit:

·         “So, given the words of the Constitution and the history, we are unpersuaded by the argument that the recess appointment power may only be used in an intercession recess”.

[Again we see the reason for the Eleventh’s failure: they start with their thumbs on the scales. Because George W. Bush had taken this action, they were loathe to overturn it unless we could persuade them that they must. –Tim]

So we conclude this post with a summary of how the Eleventh managed to get their answer, supporting the intrasession recess appointments of George W. Bush, which they ought not to have done:

WORDS

They stiff-armed the opposition on definitions, always playing defense, barely mustering the strength to say that their definitions could possibly be right

HISTORY

They ignored an astounding 150 years of evidence, and begged the question by saying that whatever presidents begin to do they may do.

PURPOSE

They excised as much of the purpose of the full appointments clause as necessary to get a sentence that matched their desired outcome.

STRUCTURE

Nary a word. Nary a word. There was no way to talk of interlocking parts without admitting that their decision was incompatible with a meaningful separation of powers.

That’s that. You’ve just read the precedent from 2004, upholding recess appointments by George W. Bush. And you’ve read rebuttals by the Dissent in that case and the Fourth Circuit from 2013. The Negative answer, that Presidents do not have authority to make recess appointments during intrasessional appointments, is now the law of the Fourth Circuit, soon to be taken to the Supreme Court for review.

In addition to the rebuttal language above, which specifically addressed the opinion of the Eleventh Circuit, the Dissent and Fourth Circuit both wrote their own direct assessments of the case. We will address those assessments in the next post.

Intrasession Recess Appointments - Text and Methodology

This is Part 2 of a series, in which we answer the question: does the President have authority under the Constitution -- really, not according to current law, which is mixed -- to make a “recess appointment” during an intrasession break? An intrasession break is a break in Senate proceedings other than the formal break between distinct sessions of the Senate. It’s analogous to Spring Break versus Summer Vacation to a school kid, or an instant messaging status of “Be Right Back” versus “Away”.

The Fourth Federal Circuit Court recently answered the above question in the negative: the President may not make recess appointments during such breaks. But in doing so, they contradicted a sister Circuit’s judgment from 2004, answering in the affirmative.

We should start where judges should start, with the text of the Constitution. Then – in the next post – we will address three opinions directly on this topic in the judicial record:

Text of the Constitution 

[The President] … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
 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.

I gotta say, “fill up all Vacancies” sounds like he’s going to need a caulking gun. For Constitutional clunkiness, that ranks right up their with the punctuation debacle of the Second Amendment.

Methodology

Constitutional arguments generally have standard components. They aren’t explicitly called out, usually, but they are a natural part of an argument for Constitutional meaning. When I outline and break down the arguments, I’ll impose this structure on them, to help us compare.

WORDS

An analysis of the words used by the framers. While different legal philosophies suggest different levels of fidelity to the plain meaning of that text, few have seriously argued yet that we may simply fly away from it without some tether.

STRUCTURE

The words of any law, and particularly the Constitution, are taken to be meaningful and coherent. So interpretation of lone words and short phrases are expected to take a coherent place in the structure of the Constitution. If they do not fit with the structure, the interpretation is suspect. Not every clause of the Constitution plays a part in a larger structure. And structure ought never to be confused with “pattern.” We are talking about actual interlocking parts, like the checks and balances between branches of government, not imputed tendencies (e.g. “Guys who wrote these three amendments over here were clearly the kind of guys who would have meant x by these words.”).

HISTORY

The words of our Constitution are bare. The framers used very few. They didn’t hammer down every detail. In such instances where the words leave flexibility, the traditions of our nation are taken by many legal philosophies as a guidepost toward the proper understanding today.

PURPOSE

Danger! Stating that your interpretation fits the purpose of a clause is a sort of question begging: where did you learn about the purpose. A purpose argument must justify its purpose in order to be of any value.

PRACTICAL EFFECTS

Though some judges try to avoid it when the object is the Constitution, as opposed to statute, one cannot help but consider the practical implications of one’s interpretation in the real world. A body of law which is not workable is no good to anybody. Many opinions therefore polish off their discussion with a bow to practicality. This is especially common when critics claim an opinion is unworkable.

So, for each opinion we review, we’ll approach their arguments in these categories.

See you next time.

Were Barack Obama's recess appointments to the NLRB unconstitutional?

Answer: Yes (though, importantly, they were not without precedent)

Question difficulty: Medium

Presidents fill vacancies in many governmental appointments with the advice and consent of the Senate. This was and is an important separation of powers, and part of the checks and balances of our constitution. It forces the Executive to make appointments that are acceptable to the Legislature. In Federalist 67, Alexander Hamilton identified concerns of nepotism, home-state favoritism, and fitness for office.

Of course, you wouldn't want a critical vacancy to go unfilled all summer long because the Senate was in recess. And this was more true in the 1780s, when gathering the Senate was a difficult burden -- and lengthy process -- that simply could not be done on short notice.

So the Constitution allows that presidents can forgo advice and consent during "the Recess of the Senate," and their recess appointment serves until the end of the next session. The original understanding of recess appointments (illuminated by the Federalist Papers and early practice) was that this was a supplemental procedure intended to help maintain government during times when the Senate was disabled by recess from providing their advice and consent. It was plainly understood not to be a compromise method by which the president could side-step the Senate by waiting for a recess to make the appointment.

 For this reason, early recess appointments of any sort were relatively rare. And until 1921, it was rare or unheard of to appoint someone through an intrasessional recess. Increasingly since then, presidents have made recess appointments when the Senate was out for even a couple weeks. Clinton made an intrasessional appointment during a nine-day break. Can you imagine the hysteria if a Chief Justice were appointed in such conditions? And presidents of both party no longer have any shame at all about waiting out the Senate to make an intersessional recess appointment.

 This practice of intrasessional recess appointments was specifically upheld -- over a powerful and right-minded dissent -- by the 11th Circuit Court of Appeals in 2004, when the constitutionality of an intrasessional appointment by George Bush was questioned and affirmed by that court. The court should have struck down George Bush's intrasessional appointment as an unconstitutional evasion of Advice and Consent.

 *** Pause for Reflection ***

 If you view this issue with partisan glasses, and you have a strong opinion that Barack Obama was either within our beyond his authority, pause and be honest: if you had never heard the facts of this case, but instead had before you the similar facts from the 2004 case -- that is, if we keep every essential thing the same but substitute George W. Bush for Barack Obama -- would you have a different "going in" position? Give this one a full minute of honest reflection, because the actions of Obama and Bush are going to be approved or rejected (with some caveats beyond our scope) in the one judgment we make. Their fortunes are tied together.

 ** End Pause. Resume Rush to Judgment. ***

 Partly in response to the 11th Circuit, interbranch warfare has been elevated further: the Senate now officially declares itself "not in recess" during short breaks to prevent the executive branch from claiming the right to a recess appointment during them, especially since the Senate is always willing and always able to fly back to Washington to take care of business, if needed.

 To do this, they essentially pass an agreement that during their breaks to travel home, visit with family or celebrate a holiday, the Senate remains in session. They agree that a couple of senators will hang out in DC and hold pro forma sessions every three days in which nothing is to be done except solicit new business, hear none and head out for margaritas again, and that if anyone wants to conduct business during the break they'd need to let everyone know. Importantly, during these periods (and during the one Barack Obama used) the Senate has in fact conducted business that needed to be conducted. So: the Senate is not disabled by such breaks from providing advice and consent if they are willing to do so.

 President Obama took the next logical step in this bipartisan battle for power between the branches. There was strong obstructionism going on at the time of this gambit. The Republicans of the Senate were seen as obstructionists, increasing sympathy for the president's attempts to complete his appointments to vacancies by alternate means. Obama made his appointments during a time when the Senate specifically said they were not in recess, and that they were available for business (though none was intended). He explained that a Senate that was scattered across the 50 states was plainly in recess, and that saying otherwise is only to pretend otherwise. When the Senate accused Obama of cheating, he replied "but you were on a break!"

 A company that wasn't happy with subsequent decisions of the NLRB sued, and the 4th Circuit has now -- January 25, 2013 -- held that these intrasessional appointments are not consistent with the Constitution's requirement for advice and consent, and the Executive branch (whatever the party) is hereby requested to get its hand out of the cookie jar.

If words have meaning, the 4th Circuit Court of Appeals correctly answered the question. The case of Canning v. NLRB will certainly be appealed to the Supreme Court, and I predict that SCOTUS will correctly uphold the 4th Circuit in a split, 6-3 decision. I'll go further, and predict that the opinion will be authored by Roberts, Kagan or Sotomayor, or else be issued per curiam. It will be a coveted opinion to write.

Answering this question isn't as easy as walking through a garden. But we can compare three arguments on the record to see whether a layman can find the truth in such a difficult matter. There is the prevailing majority's argument in the 11th Circuit case from 2004, the strong and correct dissent in that case, and the unanimous opinion in the recent 4th Circuit case.

So, can a layman find the truth in such a difficult matter? Oh yes he can. And that's what we'll do in the next posts.