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.”