In a prior post, I discussed some of the disagreements between historians and originalists. I argued that more information is generally better than less information and therefore both groups of scholars are likely to make contributions as to constitutional interpretation. Here I want to examine the relative contributions of the two groups and in particular whether the standard methods used by originalists are adequate to the task. Jonathan Gienapp argues that, without the skills of the historian, originalist law professors will not be able to determine the original meaning of constitutional language, because the language games and other aspects of 18th…
The Recess Appointments Decision Part I: Nonoriginalism and Originalism
The Supreme Court’s recess appointments decision in Noel Canning was largely a disappointment from the perspective of originalism and the original meaning of the Recess Appointments Clause.
There were three issues involved in the case: (1) the type of recess issue (whether a recess appointment could be made only during an intersession recess or also during an intrasession recess); (2) the happen issue (whether a recess appointment could be made only to a vacancy that happened during the recess, or also to a vacancy that initially arose during the session); and (3) the pro forma issue (whether 1 minute sessions attended by 2 Senators count as real sessions).
A majority decision by Justice Breyer is almost always a bad thing for originalism. And that was true in Noel Canning. The majority got the type of recess issue wrong (saying that a recess appointment could be made during not only an intersession recess but also an intrasession recess). And it got the happen issue wrong (saying that a vacancy could be filled with a recess appointment not only if it happened during the recess, but also if it initially happened during the session).
Eric Posner on the Recess Appointments Clause
Over at Slate, Eric Posner has a piece attacking the D.C. Circuit’s Recess Appointment decision in Noel Canning. Posner writes:
But here’s the point. It defies belief that the founders intended to constrain recess appointments by using the word “the” rather than “a”, or by using the word “happen” rather than “exist.” If the founders had feared that the president would abuse the recess appointments power in order to create a tyranny, they would have made their intentions to constrain the president a bit more explicit.
In fact, we know next to nothing about what the founders intended because of the paucity of contemporary documents revealing their intentions. We can surmise that they wanted the president and Senate to share the appointments power but also that they recognized that the president might need to make appointments to keep the government running when the Senate was out of session. Both the court’s and the Obama administration’s readings of the clause are consistent with this general purpose, so it is idle speculation to draw on the original understanding to resolve the dispute.
Greve on the Recess Appointments Decision
Michael Greve is not enthusiastic about the D.C. Circuit's recess appointments decision. Let me just make two quick responses here. Michael says I’m not a great fan of hanging too much on definite or indefinite article (“the,” “a”), for statutory or even constitutional purposes. The court’s opinion looks a tad doctrinaire, and it upsets recess appointment arrangements that have been common for many, many decades (although not, Judge Sentelle trenchantly notes, the first several decades of constitutional practice). First, while the court relied on "the recess of the Senate," my article did not place much, if any, reliance on that aspect of…
The Bipartisan Character of the Original Meaning of the Recess Appointments Clause
There will no doubt be charges that the D.C. Circuit’s Noel Canning decision holding that President Obama’s recess appointments to the NLRB is unconstitutional was a partisan decision. But the charge is baseless. It is true that the D.C. Circuit panel of judges were all appointed by Republican Presidents. And, of course, the Recess Appointments were by Democrat Barack Obama to promote liberal policies on the NLRB. But that is a short-sighted way to view the decision. First, the decision, if it stands, will operate to constrain the powers of Presidents of both parties. Second, the decision is a constraint on Presidents, which…
