Originalism in Noel Canning, Part II (“Happen”)
My last post talked about the original meaning of “recess.” Next is the “happen” question: For President to fill a vacancy during a recess, must the vacancy arise during the recess, or can it pre-date the recess? The question has been framed as whether “happen” in the Recess Appointments Clause means “arise” or “exist.” (As a reminder,the Clause grants the President power to “fill up all Vacancies that may happen during the Recess of the Senate.”) The majority may have the better of the argument here as well.
To the modern ear, “happen” sounds like it only means “arise.” But what about to the eighteenth-century ear? As the majority observes, Thomas Jefferson opined in 1802 that the phrase was susceptible of either meaning. Perhaps more important, since his direct claim might have been politically motivated, Jefferson actually used “happen” to mean “exist” in his own correspondence. Although Alexander Hamilton endorsed the arise view, he called it only the “most familiar and obvious sense” of the language, which is different from saying it is the exclusive meaning. Likewise, Attorney General Wirt opined in 1821 that, although “arise” was the more natural reading, “exist” was possible as well, “without violence to the sense.”
Dictionaries suggest that “exist” was a valid, albeit minority, meaning of “happen.” One ratification-era dictionary gives the definition “to be” (others provide only the arise meaning). The Oxford English Dictionary’s third definition is “to chance to be,” and it provides usage examples from before and shortly after the late eighteenth century. Ratification-era constitutions also give some support to the “exist” reading. Most, if not all, of the constitutions that grant recess appointment powers do not restrict them to vacancies that arise during a recess. If there was a gestalt sense of how recess appointment powers should operate, then, it appears to have reflected the “exist” view.
There’s more, but let’s move on to the concurrence. To support the “arise” view, it cites two early attorneys general, an 1803 scholarly interpretation, and early congressional practice. Not bad. One can quibble with some of this evidence—I’ll pick on one piece in a moment—but for now let’s assume it’s sound. Does it establish that the “arise” view was the sole meaning of the word happen? It seems hard to reach that conclusion unless one is compelled to choose an exclusive meaning for the term. Otherwise, it’s hard to justify dismissing the contrary evidence, which includes the views and usage of Thomas Jefferson, hardly an unlettered member of the founding generation. (The concurrence, in an unfortunate moment of overstatement, says that “no reasonable reader” would have understood the Clause the way Thomas Jefferson apparently did.)
If one must choose a single definition, then of course it’s reasonable to conclude that “arise” was the more natural or majority meaning. Was the Court compelled to choose? I don’t see why it was, and the concurrence doesn’t offer a reason. The Clause’s drafters had to balance the need for expediency against the desire for Senate involvement—the potential need to fill offices urgently, regardless of when vacancies arose, against the possibility of less Senate involvement than one generally might desire. It is not clear that they must have erred one way or the other. Neither choice is unreasonable, much less absurd.
Ultimately, then, I think the majority’s conclusion better reflects what we know of original meaning. The evidence suggests that the word was ambiguous, susceptible to two different readings. One seems clearly to have been a minority meaning, to be sure. But in the absence of a compelling reason to pick an exclusive position, it seems the proper approach as a matter of original meaning is to recognize that the text had two possible meanings, and leave it at that.
Now for the evidentiary quibble. As a general matter, I think the evidence for the “exist” view is weaker than commonly believed, and originalists should consider it more carefully. But here I’ll mention just one point: The concurrence leads with the opinion of Edmund Randolph, the nation’s first attorney general, and it seems to rely on him heavily. In an apparent attempt to bolster Randolph’s value as a source, the concurrence says that Randolph was “a leading member of the Constitutional Convention.” What the concurrence fails to note is that Randolph refused to sign the Constitution in part over objections to the presidential appointment power and recess appointment power. By the Virginia Convention, he had come to support ratification, but he still expressed hope that the appointment power and recess appointment power would be excised from the document, at least with respect to judges.
Is Randolph a reliable source of original meaning? Maybe. Or maybe when he had the opportunity to set precedents as the first attorney general, Randolph pursued his private agenda—including his opposition to recess appointments—irrespective of original meaning. Perhaps even contrary to original meaning.