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.