noelIn its late June decision in NLRB v. Noel Canning, the U.S. Supreme Court unanimously invalidated President Obama’s efforts to make three recess appointments to the National Labor Relations Board.  The Court was sharply divided, however, on the rationale for its decision.  Five justices joined Justice Breyer’s majority opinion, which rejected the most sweeping challenges to the recess appointments and ruled against the Administration on the much narrower ground that the Senate was not, in fact, in recess at the time that the appointments were made.  As a long-time advocate of judicial restraint, I applaud the narrow approach adopted by Justice Breyer.  Justice Scalia’s opinion concurring only in the judgment would have had the effect of preventing future Presidents from making recess appointments except in the rarest of circumstances.  To me, it illustrates the shortcomings of originalism as a means of ensuring judicial restraint.

Article II of the Constitution mandates that the President ordinarily must obtain “the Advice and Consent of the Senate” before appointing an officer of the United States.  The Recess Appointments Clause creates a limited exception to that requirement by authorizing the President, on a temporary basis, “to fill up all Vacancies that may happen during the Recess of the Senate.”  Noel Canning forced the Court to construe the meaning of two phrases contained in the clause.

First, what is meant by “the Recess of the Senate?”  Those challenging the NLRB appointments claimed that the phrase refers only to an inter-session recess, i.e., a break between formal sessions of Congress.  On the other hand, President Obama asserted (as have all recent Presidents) that the phrase also encompasses an intra-session recess, such as a summer recess in the midst of a session.  The NLRB appointments would have been improper under the challengers’ interpretation because the Senate indisputably was not on an inter-session recess at the time of the appointments.

Second, what is the scope of the phrase “Vacancies that may happen?”  The challengers asserted that the phrase refers only to vacancies that first come into existence during a recess.  President Obama (and his predecessors dating back for at least a century) urged a broader reading that would also encompass vacancies that arise prior to a recess but continue to exist during that recess.  The NLRB appointments would have been improper under the challengers’ interpretation because they were made to fill offices that first became vacant before the start of the recess in question.

While the majority viewed both interpretations as plausible understandings of the Framers’ intent, Justice Scalia concluded that the language and structure of the Recess Appointment Clause unambiguously supported the challengers’ interpretation.  But he never fully comes to grips with a quandary that arises from his conclusion:  if the text so unambiguously supports his view of the Recess Appointments Clause, why have so many very intelligent people over the past 200 years disagreed with his interpretation?  For example, a total of 22 federal appellate judges heard three recess appointments cases that came before the Second, Ninth, and Eleventh Circuits in recent years.  Those judges who addressed the “Vacancies that may happen” language disagreed with Scalia’s interpretation by an 18-1 margin; they concluded that a recess appointment is permissible so long as the vacancy continues to exist during the relevant recess of the Senate.  (The three Second Circuit judges found it “inconceivable” that the Framers intended the narrow construction later adopted by Justice Scalia.)  Those judges who addressed what is meant by “the Recess of the Senate” disagreed with Justice Scalia by an 8-0 margin; all eight agreed that the phrase refers to intra-session recesses as well as to inter-session recesses.

Indeed, Justice Breyer marshaled evidence demonstrating that a broad reading of the Recess Appointments Clause has been widely accepted throughout American history.  Presidents have made “thousands” of intra-session recess appointments.  The practice dates from the 1860s and has been commonplace since the 1920s.  Recess appointments to fill vacancies that existed before the start of the recess have an even richer historical pedigree, dating back to the early 19th century and perhaps to the 1790s (the 18th-century evidence is ambiguousCit is often very difficult to determine when offices filled by recess appointments first became vacant).  Ever since an 1823 opinion by President Monroe’s Attorney General, the Executive Branch has been firmly in the vacancies-that-exist camp.  While individual Senators have on occasion objected to recess appointments to fill pre-existing vacancies or that were made during an intra-session recess, the Senate as a body has never sought to block such recess appointments.

Scalia argues that the post-1780s historical record is not as strong as Breyer makes it out to be.  But his principal point is that post-1780s history is irrelevant in determining the extent of the President’s recess appointment powers, in light of what he views as an unambiguous constitutional text.  He dismisses evidence that the Senate has not attempted to block recess appointments by asserting that “the limitation upon the President’s appointment power is there not for the benefit of the Senate, but for the protection of the people; it should not be dependent on Senate action for its existence.”

But that assertion makes sense only if one’s theory of constitutional review includes the conviction that current members of the Supreme Court are better positioned to discern constitutional commands than are all others, not only President Obama and current Senators, but also officials from all three branches of government dating back 200 years.  If originalism means the right to overturn the actions of the President on the basis of one’s own interpretation of a 1787 text that has been understood quite differently for 200 years by many very bright people, then originalism is not the guarantor of judicial self-restraint that its defenders, including Scalia, have claimed it to be.  While the original understanding of the Constitution is of obvious relevance in all cases raising constitutional issues, I believe that relevance is tempered both by limitations on our 21st-century ability to discern the precise 1780s public understanding of some constitutional provisions and by the fact that the Nation’s continued adherence to constitutional supremacy is based at least in part on what later generations have understood the Constitution to stand for.

Justice Scalia would impose limitations on Presidential powers as a means of preserving what he views as the constitutionally mandated balance of power among the three branches of government.  But Noel Canning still leaves the Senate with numerous tools by which it can counteract recess appointments to which it objects.  The more serious danger to separation-of-powers principles arises when courts seek to impose their will on the other branches of government when the other branches are engaged in conduct that has been widely accepted for much of the Nation’s history.  As Justice Harlan stated, in his critique of originalism as an inadequate check on judicial activism, “Judicial self-restraint will be achieved . . . only by continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that doctrines of federalism and separation of powers have played in establishing and preserving American freedom.”