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.