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.