There’s been a lot of talk recently about the high degree of unanimity at the Supreme Court this Term. But while today’s decision in National Labor Relations Board v. Canning may have been nine-zero as to the judgment, it was in reality a five-four decision, with the Justices disagreeing sharply over the proper scope of the Recess Appointments Clause. With respect to those fundamental constitutional questions, there was only one thing as to which all nine Justices agreed: the proper place to look for answers to those questions was the Constitution’s text and history.
Indeed, one of the most striking things about today’s opinions is the extent to which both Justice Breyer’s majority opinion and Justice Scalia’s dissent-like concurrence both tried to lay claim to the Constitution’s text and history. (Also striking, though less significant, was the fact that it was a former Senate staffer who was championing executive power, while it was a former head of the Office of Legal Counsel who was looking to cabin it.) Although Justice Scalia attempted to suggest otherwise – he accused the majority of adopting an “adverse-possession theory of executive authority” and engaging in “judicial adventurism” – Justice Breyer’s opinion for the Court began and ended with the Framing. As Justice Breyer explained at the beginning of his analysis, the Recess Appointments Clause “reflects the tension between, on the one hand, the President’s continuous need for ‘the assistance of subordinates’ . . . and, on the other, the Senate’s practice, particularly during the Republic’s early years of meeting for a single brief session each year.” The Recess Appointments Clause both reflects that tension – and resolves it – by granting the president the power to make time-limited appointments during those periods when the Senate is in recess and thus unavailable to provide its advice and consent. As Justice Breyer notes at the close of his opinion, “Alexander Hamilton observed in the very first Federalist Paper that ‘the vigour of government is essential to the security of liberty.’ . . . And the Framers included the Recess Appointments Clause to preserve the ‘vigour of government’ at times when an important organ of Government, the United States Senate, is in recess.” To be sure, Justice Breyer properly notes that the Court’s interpretation of the clause is consistent with long-settled historical practice, but that shouldn’t detract from his emphasis on the Constitution’s text, structure, and history.
Why then is Justice Scalia (the Court’s foremost originalist) so opposed to the majority’s interpretation of the Recess Appointments Clause? To Justice Scalia, the proper interpretation of the Clause begins – and basically ends – with the text of that Clause. By contrasting the term “recess” with the term “session” and picking one of two reasonable interpretations of the term “happen,” Justice Scalia finds unambiguous text that that presidents, members of Congress, and courts have found (at minimum) ambiguous since the nation’s Founding. And that’s where his analysis goes astray. Unlike the Court’s majority, Justice Scalia fails to give sufficient weight to the history of the Constitution and the purpose of the Recess Appointments Clause within the larger constitutional structure. When the Framers drafted our Constitution, one significant difference between it and the precursor Articles of Confederation was the creation of a strong executive branch headed by a single president, one who would be aided in his responsibilities by subordinate officers of his choosing. Although the Framers obviously wanted the Senate to play a role (though, notably, the Framers thought that role would rarely involve rejecting the president’s nominees), they wanted to ensure that the president would be able to continue making appointments when the Senate was unable to participate in the confirmation process.
Justice Scalia barely grapples with this key purpose of the clause and its role in the larger constitutional structure. And to the extent Justice Scalia doesn’t ignore the clause’s purpose, he simply invents one. Justice Scalia accuses the majority of disregarding a “self-evident purpose of the Clause: to preserve the Senate’s role in the appointment process.” It’s an odd assertion, given that the Senate would have had a role in the appointment process without the Recess Appointments Clause. The Recess Appointments Clause was plainly an affirmative grant of unilateral appointment power to the president in those circumstances when the Senate could not be involved. And it is, in part, because Justice Scalia fails to consider the purpose of the clause and its role in the broader constitutional structure that he sees no ambiguity in text that so many others have found ambiguous. It’s an odd omission for Justice Scalia – who, at the end of his opinion, cautions that the Court should “take every opportunity to affirm the primacy of the Constitution’s enduring principles over the politics of the moment.” (Odd, but perhaps not that surprising. In his concurrence in Bond v. United States earlier this year, Justice Scalia also gave short shrift to the Founding-era history that should have informed his analysis of the scope of the Necessary and Proper Clause as it applies to the Treaty Power.)
In short, it was not Justice Scalia, but Justice Breyer who considered and affirmed the Constitution’s “enduring principles,” principles that he discerned by looking to not only settled practice, but also constitutional text and history. To be sure, today’s decision is not an unmitigated win for executive power: the Court’s unanimous conclusion that pro forma sessions count as sessions and thus punctuate periods of recess may provide the Senate with a powerful tool to obstruct the President’s use of the recess appointment power and thus contribute to continuing dysfunction in Washington. But it is nonetheless a win for a robust understanding of the Constitution’s Recess Appointments Clause. And it is certainly a win for the Constitution’s text and history.