Analysis: The original understanding of the president’s recess appointment power

There’s something particularly remarkable about NLRB v. Noel Canning and the questions it raises about the recess appointment power.  The case presents the most basic and fundamental questions about the president’s exercise of this power: what kinds of breaks count as a “recess” so as to trigger the president’s power? And must a vacancy arise during a recess to be filled during that recess?  Presidents going back to George Washington himself have tested the boundaries of these questions.  It seems difficult to believe that these issues have entirely escaped Supreme Court review until now.  The Court has never before applied its interpretive gloss to the Recess Appointments Clause and thus is deprived of its usual tools in answering these vital questions about how the other two branches relate to one another.

As a result, even though only two of the Justices on the Court would consider themselves “originalist,” our Founding-era past will predictably exert an almost gravitational pull over the minds of the Justices.  And one can expect the resulting opinions in this case to lock horns in interpreting every scrap of relevant historical material in an effort to determine how the Founding generation expected the president to operate in applying the recess appointment power.  At the end of the day, there really is not much authority other than history to guide the Justices in answering these questions.

The parties and their amici have devoted hundreds of pages of briefing to bringing that history to light.  But there are no easy or clean answers to be found.  We learn that the terms of the Recess Appointments Clause were ambiguous in the eighteenth century, just as they are now.  We learn that there were no “intra-session” recess appointments in the first ninety years of the country’s existence – but then, Congress had no intra-session recesses before that time, so does it even matter?

And when it comes to deciding whether the president may use a recess appointment to fill a vacancy that opened before the recess began, we find that the Founding generation itself was deeply divided on the question.  While two of the leading lights of the Founding generation, Alexander Hamilton and Edmund Randolph — in his position as Attorney General of the United States — opined that the president could only use recess appointments to fill vacancies that arose during the recess, two others — Jefferson and Adams — found the issue too difficult to decide for themselves, and yet several others, including George Washington, John Adams, and Madison, flouted the Randolph position outright in their recess appointments.

Researchers from SCOTUSource, a program created by The Constitutional Sources Project, along with law students from Harvard and Georgetown, set out to lend some clarity to this historical picture.  They prepared a report based on their investigation, in which they outline their discovery that there was a great deal of important historical evidence that still had not been uncovered by the parties and previous legal scholars.  Unfortunately, the new evidence only further complicates the picture that we should expect to develop on the meaning of the Recess Appointments Clause.

For instance, it has largely assumed by everyone involved in this case, including the D.C. Circuit below, that the Founders viewed the president’s appointment authority with concern and skepticism.  The received wisdom seems to be that that the president’s appointment authority was carved up into pieces and parceled out to the Senate in Article II, Section 2 to prevent the president from becoming too powerful.  This assumption lies at the heart of the position that the president’s recess appointment power should be interpreted “narrowly” as an exception to the rule that the Founders did not trust the president to make appointments decisions on his own.

But the balance of the Founders’ opinions does not square with this assumption.  Yes, as Alexander Hamilton wrote in Federalist 76, it is true that the Founding generation believed it would be unwise to give the appointment authority solely to the President.  Involving the Senate was thought to be an “excellent check upon a spirit of favoritism in the President” to prevent “the appointment of unfit characters” owing to their connections or popularity.

But several other Founders also expressed concern that involving the legislative branch in appointments was equally dangerous.  William Findley wrote that the process deprived the president, who ought to be “fully and absolutely invested with the executive power,” of the “most important and most influential portion of the executive power, viz. the appointment of all officers.”  And the Dissent of the Minority of the Convention noted that it violated the opinion of the “elevated Montesque” that there should not be a blending of the executive and legislative functions.  This was, for example, the reason why only the Senate, and not the House, was involved in appointments.  As Hamilton wrote in Federalist 77, involvement of the House was rejected because “[a] body so fluctuating, and at the same time numerous, can never be deemed proper for the exercise of the [appointment] power.”

Thus, the true story of the appointments clauses is not that they were designed solely as a check on executive authority, but instead as a more-or-less equal balancing of interests between both branches.  This balancing of interests counsels against necessarily interpreting the president’s authority “narrowly” (or broadly for that matter), and also suggests that the Congress should not be given the exclusive authority to prevent recess appointments through pro forma sessions.

Then there is the case of the little bit of footing in this case that seems to be sure, but then seems to get progressively more sticky.  If Noel Canning has an ace in the hole for its position, it would appear to be the twin opinions of Hamilton and Randolph that both seem to squarely support Noel Canning’s position.  As Attorney General, Randolph opined that Washington could not fill the position of the “Coiner of the Mint” by recess appointment because Congress was in session when that office was first created. And in 1799, during John Adams’s presidential administration, Secretary of War James McHenry asked Hamilton whether the president could make recess appointments to several army posts that had been open while the Senate was in session.  Hamilton’s reply was blunt: “I am clearly of the opinion that the President cannot fill a vacancy which happens during a session of the Senate.”  Both opinions appear to be directly on point.  And the government’s attempts to distinguish them are completely unpersuasive.

But both Hamilton and Randolph may have been influenced by factors other than the purest legal reasoning in reaching their conclusions.  For Randolph, it was his dislike of the Recess Appointments Clause itself.  Randolph had long been skeptical about whether the Constitution invested too much power in the executive branch, so much so that he refused to sign the document as a delegate in the Philadelphia Convention.  And the Recess Appointments Clause was one of his greatest fears — at the ratifying convention, he argued that Virginia should refuse to ratify unless that power was taken out.  Perhaps his narrow opinion was driven by his dislike of the clause and a desire to minimize its utility.

For Randolph it may have been constitutional principle, but for Hamilton, pure party politics may have been in play.  Hamilton’s position is surprising, given the expansive views he held on executive power.  But it becomes a bit more clear when it is known that Hamilton issued his opinion only when asked to do so by James McHenry, President Adams’s Secretary of War.  Hamilton had maintained an icy and bitter feud with President Adams for years, and Hamilton himself was not above using politics to fan the flames of that fight.  It is entirely possible that his opinion came from a desire to make President Adams’s life more difficult any way he could.

It is anyone’s guess how the Court will be able to sort through all of this historical complexity — a complexity that seems to go deeper and deeper the harder you examine it.  All in all it should be a very difficult and very contentious case for the Court to resolve.