Originalism in Noel Canning, Part I

One striking aspect of Noel Canning is the unexpected role that original meaning plays. The majority emphasizes historical practice and the policies embedded in the relevant constitutional provisions; the concurrence urges a sharp focus on original meaning. Yet the majority opinion comes very close to reflecting what we know about the original meaning of the Recess Appointments Clause, while the concurrence has little basis in the evidence on original meaning.

Let’s start with the “recess” issue. In a forthcoming article, I demonstrate that the evidence cuts overwhelmingly against the notion that the original meaning of “recess” (or “the recess”) was limited to “inter-session” breaks. The majority fails to cite some useful evidence on this point, but its analysis is sound. It recognizes that ratification-era dictionaries do not distinguish between intra- and inter-session recesses and that the word “recess” was used broadly to refer to all types of legislative breaks. Also, historical practice has long reflected an understanding that “recess” applies to both intra-session and inter-session breaks.

The concurrence claims there is “strikingly little support” for the assertion that “the recess” was used to refer to intra-session breaks. But by my count, nine ratification-era constitutions use the term without limiting it to inter-session breaks, as do many state legislative enactments. There are executive-branch examples as well, such as when the Governor of New Jersey sent a message to the legislature in 1754 referring to a coming intra-session break as “the Recess.” Thomas Jefferson’s 1801 Manual of Parliamentary Practice and Blackstone’s Commentaries also use “recess” in a broad sense. In fact, there is virtually no evidence that “recess” or “the recess” was restricted to inter-session recess. The usage examples put forward to support that position usually refer to particular recesses that happen to have been inter-session. Of course, the fact that inter-session recesses were called “the recess” does not mean that other recesses weren’t also called “the recess.” As we have seen, they were.

Beyond the usage examples, a bit of analysis carries the point further. In the ratification era, New Jersey enumerated its sessions annually. During an annual session, the legislature might hold multiple work periods, which it called “sittings.” Sittings were separated by recesses that modern observers would call “intra-session” breaks. This practice looks a lot like the contemporary Senate’s, except that the New Jersey legislature had an official name for its intra-session work periods—sittings—and the modern Senate does not (colloquially, senators call them “work periods”). By contrast, Massachusetts called each sitting a new “session” and often had multiple sessions in a single year. As a result, in modern parlance an identical break would be “intra-session” in New Jersey and “inter-session” in Massachusetts. Given this variation in state practice, it seems unlikely that the Constitution adopts any particular definition of “recess” or “session.” How could we know whether it adopted that of New Jersey or Massachusetts? Wouldn’t the ratifiers in each state have viewed the Clause differently?

The concurrence ignores virtually all of this evidence. It dismisses New Jersey’s usage in a footnote without any clear explanation.

The next question regarding “recess” is how to cabin the term so that it doesn’t extend to, say, lunch breaks. There are a few possible responses. One is to take the Constitution at face value and hold that because it doesn’t set a limit, the courts needn’t worry about generating one. It is not obvious that the courts must limit recesses rather than permit the political branches to negotiate the term, constrained by the political process and the ballot box.

A similar response is to recognize that the Senate controls the “Rules of its Proceedings” and therefore can define its recesses, within reason, to protect itself from executive encroachment.

A final response is to identify features of breaks that make them constitutionally significant “recesses.” Both the majority and the concurrence take this route in Noel Canning. The concurrence decides that inter-session breaks count and intra-session breaks do not, despite scant textual or historical support for that position. The majority decides that three days is too short, borrowing arbitrarily from the Adjournments Clause, and nine days is presumptively too short, noting that in practice recess appointments have rarely been made during shorter breaks.

In my view, a better and likely more faithful position is that recesses are breaks between Senate work periods—times when senators take a break from the ordinary course business for a week or more. Here, I rely less on evidence of original meaning—we simply don’t have enough evidence to be confident that any particular meaning was correct—and more on reasoning about what information the Framers had before them and what fits with their purposes. Oddly, people tend to miss that the Framers could not have predicted future Senate practice and therefore could not have written the Recess Appointments Clause with an expectation of annual sessions. In fact, there were divergent views on what the Senate would do. Some thought it would rarely meet; others thought it would remain in session almost continually. We also lack a record of what anyone thought the Senate would call its work periods or how it might enumerate them. What the Framers surely knew, though, was the practice of state legislatures. The “work period” concept accommodates both the Massachusetts session and the New Jersey sitting. It is also the most obvious, know-it-when-you-see-it candidate for what constitutes a recess of significance as opposed to a mere lunch break or weekend. In fact, unlike those insignificant breaks, senators have long referred to the times between work periods as “recesses,” often with more specific names like the “August Recess” and the “Easter Recess.” Most important, breaks between work periods are times when senators might not be readily available.

The majority’s nine-day presumptive minimum comes close to this “work period” view, although it arrives there by relying on historical practice. The convergence may not be coincidental. A break between work periods is essentially a week or more off, which means a minimum of nine days. Perhaps, then, historical practice reflects the work period view in action—and perhaps original meaning and historical practice have been in harmony, not conflict.

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4 Responses

  1. Asher says:

    Doesn’t the clause’s provision that recess appointments expire at the end of the Senate’s “next Session” suggest that the recesses referred to earlier in the clause are recesses between sessions? If so, would you also interpret “Session” colloquially, i.e. as any Senate work period? I don’t quite understand a reading of the clause that says that the President may appoint during an intra-session recess, that that appointment will list through the remainder of the session and through the following inter-session recess, and that it will expire only at the beginning of the next session. The point of appointments expiring at the end of the next session would seem to be that they expire once the Senate is once more available to advise and consent. But if “the Recess” includes intra-session recesses, while “the Session” only refers to formal sessions, the appointments expire not only long after the Senate has made itself available, but after the Senate has again made itself unavailable.

    • David Arkush says:

      It is certainly possible to conclude that “session” means “work period.” (Note that this isn’t a colloquial rather than formal meaning. There were multiple formal meanings, and this is one of them.) Under this view, recess appointments would be much shorter than they are at present. That arrangement is not unreasonable if one expects the Senate to confirm most nominees without incident. That appears to have been the common expectation from the ratification to recent decades.

      That said, I don’t think we can rule out the possibility that “session” refers to annual sessions even if “recess” means the break between work periods. Both “session” and “recess” had multiple possible meanings, and the terms need not be reciprocal. We can reason about the Clause’s meaning based on policy, but I don’t see an obvious answer there.

      Let’s assume “recess” refers to the breaks between work periods. In that case, as you point out, perhaps “next session” should mean the next work period because the goal is just to give the Senate a chance to consider the nomination. That may be right, but there are other ways of thinking about the issue. One might think extremely short appointments are problematic. One might be concerned that they are unduly burdensome on the Senate, sometimes pressuring it to act too quickly, or one might think it undesirable to put the President and the temporary officer at risk of such a rapid reversal.

      For these reasons, you might want “session” to mean something longer than the typical work period even if “recess” means the break between work periods. Of course, there are also potential flaws in having “session” refer to an annual session. Recess appointments may be much longer than is necessary or desirable. Is this arrangement better or worse than the possibility of unduly short appointments? I’m not sure, and I certainly can’t say what the Framers thought.

  2. Brett Bellmore says:

    On top of that, there’s the question of then the vacancy occurred. (Which, IMO, the majority got wrong.)

  3. mls says:

    I think you are basically right, though your position is more consistent with the concurrence than you seem to think. When the Constitution refers to the “session” of the Senate or Congress, it means “the period during which the body is sitting.” Another way of putting it would be “the period during which the body is in session.” That was the ordinary meaning of the word in the legislative context. (Johnson defined “session” as “the space for which an assembly sits, without intermission or recess”).

    We know that a session of Congress cannot end without a concurrent resolution under the Adjournment Clause, proroguement by the President, or the “efflux of their time” (ie, running into the next constitutional meeting date). In the absence of one of these events, the session continues and there is no “recess.” Since none of these events occurred following the commencement of the session on January 3, 2012, it follows that there was no recess and thus the president’s recess appointments were invalid (as the Court unanimously found).

    The only issue, then, is what happens when Congress does adopt a concurrent resolution of adjournment. The possibilities are (1) no recess unless the resolution is sine die, (2) no recess unless the adjournment is of a sufficient length, (3) automatic recess or (4) the president decides if the particular adjournment is a recess.

    Personally, I could live with any of these options, although the first effectively allows the Congress to cut off the president’s recess appointment power, which may be problematic. The president deciding might also seem problematic, but it should be noted that if the president decides there is a recess, he is also deciding that the previous session has ended, thereby ending any previous recess appointments.

    If we are going to go with a minimum time period, I would just note that Senate rules for more than a century have said that when there is an adjournment of 30 days, all nominations submitted by the president are to be automatically returned. If the adjournment is less than 30 days, they remain with the Senate and there is no need to submit new nominations. Its puzzling why this is not used as the line of demarcation (assuming we are going to use a time period).

    So the concurrence was correct that all recesses must be “inter-session” but its choice of option number 1 as the way of distinguishing between recess and session is debatable.