When originalism goes wrong: Court finds Obama’s recess appointments to NLRB unconstitutional

Since brevity is often as issue for me and I occasionally blather on for too long on a subject, I will be offering a 140-character “too long; didn’t read” Tweet-like summary of such articles.

TL;DR Tweet Version: Spirit of constitution gives Pres. power to fill vacancies when Senate can’t/won’t; 11th Circuit hacks betray spirit for GOP/originalism.

In a stunning display of ideological hackwork, the 11th Circuit Court of Appeals just reached into its bag of originalist tricks and handed Republicans in Congress a constitutional stamp of approval for their obstructionist efforts.

OK, so here’s what happened: The Obama administration wanted to appoint three new members to the National Labor Relations Board, an independent regulatory agency that oversees issues such as labor union elections and unfair labor practices.

Senate Republicans filibustered these nominations to prevent their appointments and keep the NLRB from performing its regulatory function. This left the administration the Hobson’s choice of having to make recess appointments while the Senate was away during the Christmas recess of 2011.

Suspecting that Obama might do this, the Republicans held “pro forma” sessions during the holiday season, meaning a couple of senators showed up to the Hill every few days, not to do any work, but to keep the Senate in session on a technicality.

The administration, feeling that the pro forma trivialities did not constitute an actual legislative session, decided to make the recess appointments anyway, much to the chagrin of Senate Republicans.

Then Noel Canning, a small bottling company in Washington state that got slapped with an unfair labor practice suit after getting into a pension fund tiff with its union employees, decided to challenge the ruling, and the case found its way to the conservative 11th Circuit. And although the court basically agreed with the original unfair labor ruling, they found that Obama’s recess appointments were unconstitutional, so, ergo, the NLRB that issues such unfair labor regulations was in no legal standing to enforce such.

There’s no wrong way to have a recess?

The power for the president to make temporary recess appointments comes from Article II, Section 2 of the Constitution, which states: “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.”

The first part of the debate concerns whether the word “happens” meant the vacancy occurred during a Senate recess or happened to exist at the time when a recess begins. The second debate is whether the phrase “the Recess” refers to the longer intersession recess that occurs during the adjournment of one legislative session and the convening of the next or can also refer to any of the shorter intrasession recesses that occur during the legislative session when the Senate takes a break for more than a couple of days.

In the Noel Canning case, the three-judge panel (all appointed by Republican presidents) ruled that not only did “the Recess” only refer to the intersession recess but also that the vacancy must occur during the actual recess and not before. They arrived at this radical conclusion by using an originalist interpretation of the Constitution, which attempts to decipher and apply the exact, literal, original meaning of the text.

Originalist constitutional interpretations have become popular in recent decades, especially among conservative and libertarian crowds. The modern debate draws a dividing line between the originalist camp and those who interpret the Constitution as a “living document”, meaning its principles evolve over time.

Justice Scalia, perhaps the nation’s foremost originalist, has famously said the Constitution is “dead, dead, dead.”

So, were these recess appointments to the NLRB made by the Obama administration unconstitutional? Absolutely, they were. But, you know what? And this is an argument I’ve been making for quite some time, practically everything done in the modern era could be considered unconstitutional under a strict originalist interpretation.

I’m strongly considering writing a book someday arguing that almost the entire history of American jurisprudence consists of people spit-balling at the wall to see what sticks. The notion that a single document of 4,500 words written more than 200 years ago would contain all the answers to every legal and political challenge in the succeeding centuries to come is a kind of fundamentalism better suited for the pulpit.

I think the Constitution was a shining testament to democratic ideals, a brilliant, if not imperfect, document, but I view it more as an important guidebook rather than a gospel of doctrinal edicts chiseled into stone. The legislative and judicial review process should try to remain true to the spirit of the Constitution but need not approach each word of the text as infallible and perpetually relevant to all future challenges of this nation.

And this Noel Canning decision does not remain true to the spirit of the Constitution nor the Recess Appointment Clause. This case is a classic example of what happens when originalism goes wrong.

What sounds good on paper…

Ever since childhood, I’ve loved inventing games to play with friends, from board games to whacky sports. And I‘ve often found that some of the rules I came up with during the design phase did not work so well in practice once the game was actually played. What sounded good on paper, does not always work in reality.

And so it is with this Recess Appointment Clause.

Sure, according to an originalist interpretation, the clause did initially stipulate that the vacancy must occur during the intersession recess. The 11th Circuit judges are correct on this point. One need only look to Alexander Hamilton to discern this.

But remember that thing about what sounds good on paper? The first president to bump into problems with the wording of this clause was our very first president, George Washington.

A new position had been created called Chief Coiner of the Mint, but the position was created near the end of the Senate’s session and there had not been time to appoint anyone to fill it. Serving then as Secretary of Foreign Affairs, Thomas Jefferson wrote a letter to Attorney General Edmund Randolph asking if a recess appointment would be constitutional.

Randolph wrote back saying that the vacancy had technically occurred as soon as this position had been created, which was during the session and not the recess, so, therefore, a recess appointment would be unconstitutional.

Uh oh… our very first president immediately encountered a scenario for which the Constitution did not stipulate.

The whole point of the Recess Appointment Clause was to make sure all positions and offices were filled and government functioned smoothly, even if the Senate wasn’t in session.

But what if mitigating circumstances occur and you wind up with a vacancy to an important office occur during the session and are unable to fill it until the recess?

The Senate originally held legislative sessions for three to five months and then adjourned for the intersession recess that would last between six and nine months. Should the country really go without the function of an important office for nine months because the framers of the Constitution failed to think of scenarios like that of Washington and the Chief Coiner of the Mint?

It only took until the presidency of James Monroe before the Attorney General began singing a different tune. In 1823, Attorney General William Wirt wrote that, while only allowing the president to fill vacancies that only occur during the recess might be more “accordant with the letter of the Constitution,” a broader interpretation that allows for any vacancy to be filled during the recess, regardless of when it occurred, would be more accordant with “its spirit, reason, and purpose.”

And so, ever since, pretty much every administration, attorney general and court has concurred with Wirt’s interpretation of the Recess Appointment Clause—that is, until now.

It’s only unconstitutional when the other guy does it

Even the 11th Circuit once agreed with this interpretation when a Republican president did it. Back in 2004, in the case Evans v. Stephens, the court found that George W. Bush’s intrasession recess appointment of Judge William Pryor was constitutional even though it filled a vacancy that occurred before the recess.

Not only have the vast majority of presidents made recess appointments for such vacancies, but most of the presidents of the modern era have made intrasession recess appointments without much of anyone batting an eye.

This is partly because the length and frequencies of recesses has changed over the years. The schedule for legislative sessions looks quite different now than it did during the time of the Founding Fathers, when intrasession recesses were extraordinarily rare (now the Senate takes a week-long recess every month and is off for the entire summer).

Ronald Reagan made 72 intrasession appointments, and Bill Clinton made 53. George W. Bush made a staggering 141 such appointments, and Obama so far has made 26.

The only difference this time is that the Senate was arguably not in a recess but, rather, pretending to be in session by holding these pro-forma mockeries.

If you can’t beat ‘em, obstruct ‘em

Granted it was actually the Democrats who first began using these pro forma sessions back in 2007 for the exact same purpose of technically keeping the Senate in session to block the recess appointment of some of Bush’s nominees.

Take a gander at this. Here’s what one of these pro forma sessions looks like:

That pathetic 45-second waste of everyone’s time is supposed to constitute a legitimate legislative session of the Senate? It was absurd when the Democrats did it; it’s absurd now. This is blatant parliamentary chicanery.

The Republicans knew that if these nominees came to a vote they would be confirmed because the Democrats have a majority and only 51 votes are needed for confirmation. So, they filibuster the nominees and hold these absurd pro forma sessions to prevent a recess appointment.

This amounts to democracy being usurped by the tyranny of the minority—again, something not consistent with the spirit of the Constitution.

These obstructionist shenanigans are not the exclusive domain of Republicans, as both sides have engaged in similar petulant behavior in recent decades. But the current slate of Congressional Republicans in the Obama era have engaged in a kind of bewildering Wile E. Coyote-like high jinks that makes the Truman-era “Do Nothing” Congress look like a crush of Foxconn wage-slaves by comparison.

The spirit of the Recess Appointment Clause is to allow the president the option of filling a vacant office when the Senate is incapable of providing its “advise and consent” function. No reasonable person could say these pro forma charades were proper legislative sessions where the advice and consent of the Senate could be sought.

The Republicans made it clear that they would never allow Obama’s nominees to the NLRB to come up for a vote. It should also be noted that the NLRB is comprised of only five members, and without a quorum of three, the board cannot perform its regulatory function.

Senate Republicans blocked Obama’s nominees not just because they disagreed with the nominees ideologically, but because they disagreed with the regulatory function of the offices the nominees would hold.

In short, Republicans dislike the NLRB because they are no fan of labor unions or labor regulations. By blocking the appointments they stop the NLRB from functioning altogether. This kind of obstructionism is not only antithetical to the spirit of the Constitution; it runs contrary the spirit of democracy.

Here’s where this gets dangerous: This Noel Canning decision opens up the possibility to eliminate recess appointments altogether and give the minority the power to block all nominees and paralyze the function of important offices of government. As per this decision, all the Senate minority would have to do to achieve this is to keep having pro forma sessions and never break for a recess.

Can anyone really say this result is congruent with what the framers of the Constitution intended?

When an originalist interpretation overrides almost two-hundred years of precedent and runs counter to the spirit of the Constitution, it might more accurately be described with that derisive phrase conservatives are usually howling about: judicial activism. But it seems that congressional Republicans have no qualms with judicial activism when it works in their favor.


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