Last week I wrote that the appellate decision striking down President Barack Obama’s January 2012 recess appointments to the National Labor Relations Board identified a real constitutional problem. I myself had been queasy about the appointments at the time, and, with Akhil Reed Amar, I co-authored a piece suggesting a fix. Needless to say, the White House didn't take my suggestion.
I stand by my fix. But in my haste to post something Friday, when The New Republic’s Web redesign was playing havoc with editorial deadlines, I failed to note (and TNR’s Jeffrey Rosen has now made clear) that the decision is so sweeping that it disallows not only these questionable appointments but nearly all recess appointments going back two centuries. In an insanely hubristic fit of “originalism,” the appeals court presumes to know the original meaning of the Constitution better than the Founding Fathers.
You probably think I’m exaggerating, but I’m not. Allow me to explain.
The decision oversteps in two ways.
1. In rejecting a definition of Senate recess that might conceivably include every weekend of the year, the court disallowed all recess appointments made during an intrasession recess, no matter what its duration. An intrasession recess is one that occurs while the Senate is still in session. The only permissible recess appointments, the court said, were those made during intersession recesses, i.e., recesses when the Senate is not in session. These recesses come only once, maybe twice in any given year, whereas intrasession recesses are much more frequent.
The trouble is, recess appointments made during intrasession recesses date all the way back to 1867 (when President Andrew Johnson appointed a district court judge). That doesn’t cut any ice with the appeals court; it still considers them illegitimate. After all, it says, four score years passed before Johnson had the effrontery to so brazenly defy the Constitution.
2. But wait! There’s more! Even many recess appointments made throughout history during intersession recesses, the court said, aren’t kosher. That’s because you can’t just make the recess appointment during intersession; the vacancy that occasions it, the court ruled, must also occur during intersession. This ruling is based on an interpretation of the word “happen” that I’ll spare you here.
If intrasession appointments have been with us for 146 years, intersession appointments for vacancies that did not occur during intersessions have arguably been with us for more than 200 years. I say “arguably” because their application by George Washington and Thomas Jefferson was covert (i.e., they engaged in elaborate trickery to make it look as though the vacancies they filled occurred later than they actually did).
Overt endorsement of intersession recess appointments to fill vacancies that predate the intersession came during the administration of James Monroe. It was Monroe’s attorney general, William Wirt, who formulated the current interpretation. Wirt wrote that while a more restrictive interpretation was, “perhaps, more strictly consonant with the mere letter” of the Constitution, a broader reading was “the only construction of the Constitution which is compatible with its spirit, reason, and purpose.”
Unlike the three judges who today bestride the United States Court of Appeals for the District of Columbia Circuit, Wirt was able to remember personally the time when the Constitution was written. He had been two months shy of his 15th birthday when it was ratified by Congress in 1787. Wirt’s boss, Monroe, wasn’t merely alive then; he was instrumental in its passage by the state of Virginia, and successfully urged that it be amended to include the Bill of Rights. He was one of those Founding Fathers you sometimes hear about. That isn’t, alas, “original” enough for the appeals court.
Not even the Constitution is original enough for the Washington Examiner, a D.C.-based conservative newspaper. In an editorial, it actually argues that we need to “amend the Constitution to abolish recess appointments” altogether. I suppose we should be grateful it doesn’t argue for abolishing the presidency itself.