The Supreme Court Review, 2014

by Dennis J. Hutchinson (Editor), David A. Strauss (Editor), Geoffrey E. Stone (Editor)

Overview

For more than fifty years, The Supreme Court Review has been lauded for providing authoritative discussion of the Court's most significant decisions. An in-depth annual critique of the Supreme Court and its work, The Supreme Court Review keeps at the forefront of the reforms and interpretations of American law. Recent volumes have considered such issues as post-9/11 security, the 2000 presidential election, cross burning, federalism and state sovereignty, failed Supreme Court nominations, the battles concerning same-sex marriage, and numerous First and Fourth Amendment cases.

Product Details

ISBN-13:	9780226269061
Publisher:	University of Chicago Press Journals
Publication date:	07/22/2015
Series:	Supreme Court Review Series
Pages:	368
Product dimensions:	6.30(w) x 9.50(h) x 1.00(d)

About the Author

Dennis J. Hutchinson is a senior lecturer in law at the University of Chicago, where he is also the William Rainey Harper Professor in the College, Master of the New Collegiate Division, and associate dean of the College. Geoffrey R. Stone is the Harry Kalven, Jr. Distinguished Service Professor of Law at the University of Chicago. David A. Strauss is the Harry N. Wyatt Professor of Law at the University of Chicago.

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The Supreme Court Review

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By Dennis J. Hutchinson, David A. Strauss, Geoffrey R. Stone

The University of Chicago Press

Copyright © 2015 The University of Chicago
All rights reserved.
ISBN: 978-0-226-26906-1

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CHAPTER 1

AFTER RECESS: HISTORICAL PRACTICE, TEXTUAL AMBIGUITY, AND CONSTITUTIONAL ADVERSE POSSESSION

Curtis A. Bradley and Neil S. Siegel

The Supreme Court's decision last Term in NLRB v Noel Canning contains an especially strong and sustained endorsement of the relevance of historical practice to discerning the Constitution's distribution of authority between Congress and the President. In interpreting the scope of the Recess Appointments Clause, the Court gave significant attention to how governmental actors had understood and applied the clause throughout history. The Court did so, moreover, as part of a self-conscious approach to constitutional interpretation. When construing "constitutional provisions regulating the relationship between Congress and the President," the Court explained, "great weight" should be given to "'[l]ong settled and established practice.'" In large part because of the practice, the Court concluded that the Recess Appointments Clause conferred broad recess appointments authority upon the President. The Court invalidated, however, the particular appointments at issue in the case, which in the Court's view lacked historical support.

The Court was unanimous as to the result, but four Justices concurred only in the judgment. Writing a de facto dissent for that group, Justice Scalia objected, first, to the way in which the majority had relied on historical practice. He accepted that "where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision." In this case, however, Justice Scalia argued that the relevant text was clear, and that the historical practice relied upon by the majority neither dated to the early days of the Republic nor was uncontested. Justice Scalia also characterized the majority as applying "an adverse-possession theory of executive power," which he feared would "have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers."

The majority, by contrast, invoked James Madison for the proposition that the meaning of some constitutional provisions could be "liquidated" through "a regular course of practice" after the constitutional Founding, and it contended that "our cases have continually confirmed Madison's view." The majority did not explain the contours of this "liquidation" concept, however, and its reasoning about the scope of the Recess Appointments Clause seemed to be based on a potentially distinct and broader concept of "historical gloss" — a concept most famously articulated by Justice Frankfurter in his concurrence in the Youngstown steel seizure case. Indeed, judging from the way in which the concept of liquidation has been developed by originalist scholars, it would seem to accord more closely with Justice Scalia's views in Noel Canning than with those of the majority.

Justice Scalia also disagreed with the majority about the clarity of the relevant constitutional text. Justice Scalia and the majority did agree that if the text of the Recess Appointments Clause was clear, it controlled the outcome regardless of other considerations. The majority maintained, however, that "the Clause's text, standing alone, is ambiguous," and that it was therefore appropriate to consider other sources of constitutional authority, including historical practice. Justice Scalia, by contrast, argued that the text was clear, and he insisted that "[t]he historical practice of the political branches is, of course, irrelevant when the Constitution is clear."

This article engages these two disputes in Noel Canning by examining the relationship between interpretive methodology and historical practice, and between historical practice and textual ambiguity. We begin in Part I by describing the historical background and issues in Noel Canning. In the next two parts, we consider the relationship between historical practice and constitutional methodology. In Part II, we explain how a reliance on historical practice fits with various nonoriginalist and originalist approaches to constitutional interpretation. In Part III, we critique the idea of "liquidation" of constitutional meaning to the extent that it is something separate from — and narrower than — reliance on historical gloss more generally.

We turn in Part IV from the relationship between methodology and practice to the relationship between practice and ambiguity. We explain that historical practice was relevant not only to the majority's effort in Noel Canning to resolve perceived ambiguities in the constitutional text, but also to the majority's very perception of ambiguity in the first instance. As a result, the decision is an example of how the constitutional text is often interpreted through a process that we have described elsewhere as "constructed constraint." Finally, in Part V we assess Justice Scalia's contention that crediting historical gloss licenses a form of adverse possession by the President. We conclude that Justice Scalia's analogy to adverse possession usefully suggests caution in crediting historical practice, but that the analogy obscures more than it clarifies because it misses critical differences between the values underlying the adverse possession doctrine in property law and those animating a historical gloss approach to the separation of powers. In responding to Justice Scalia, we also offer thoughts on how best to define a historical gloss approach, including how to specify its limits.

I. Historical Practice and Recess Appointments

a. a brief history of recess appointments

The Constitution provides that federal officers are to be appointed through nomination by the President with the advice and consent of the Senate. It also provides, however, that the President may "fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of [the Senate's] next Session." Alexander Hamilton explained in The Federalist Papers that the Framers had included this Recess Appointments Clause in the Constitution because "it would have been improper to oblige [the Senate] to be continually in session for the appointment of officers" and because "vacancies might happen in their recess, which it might be necessary for the public service to fill without delay."

Each Congress has a two-year term, which traditionally has been divided into two yearly sessions. The break between those sessions is referred to as an intersession recess. By contrast, breaks during a session are referred to as intrasession recesses. The Constitution provides that neither chamber of Congress may take a break for more than three days without the consent of the other, which gives the House of Representatives substantial ability to affect the length of Senate breaks.

Historically, there have been three principal issues concerning the scope of the Recess Appointments Clause: first, whether the clause's reference to "the Recess" covers only intersession recesses, or whether it also encompasses at least some intrasession recesses; second, whether the clause's reference to vacancies "that may happen during the Recess" limits the clause to vacancies that occur during the recess or whether it also encompasses vacancies that exist during the recess; and, third, whether there is a minimum time period required in order for a break in Senate operations to be considered a "recess" for purposes of the clause.

1. "The Recess"

There was no sustained practice of making intrasession recess appointments before the twentieth century. Prior to the Civil War, presidents apparently made no intrasession recess appointments at all. There was relatively little opportunity to do so, however, because this was a period in which Congress took very long breaks between sessions — typically at least half a year — and no more than short breaks (of about a week) during the sessions. When Congress took long intrasession breaks during the presidency of Andrew Johnson, he made a number of intrasession recess appointments. After this episode, Congress soon returned to having only short intrasession recesses, and there were apparently no more intrasession recess appointments until 1920.

In 1901, Attorney General Philander Knox advised President Theodore Roosevelt that the Recess Appointments Clause did not apply to intrasession recesses. Knox reasoned that, although a break during a session "may be a recess in the general and ordinary use of that term," it is not "the Recess" referred to in the Recess Appointments Clause. Controversy subsequently developed when, in December 1903, Roosevelt made 160 recess appointments (mostly involving military officers) as the Senate transitioned without break from a special session (which had been convened after adjournment of the prior regular session) to a new regular session. Roosevelt claimed that there was a "constructive recess" between the two sessions that triggered his appointments authority. In 1905, the Senate Judiciary Committee published a report criticizing the appointments and arguing that "the Constitution means a real recess, not a constructive one." Although the committee's functional definition of a recess potentially could have been applied to an intrasession recess as well as an intersession recess, Roosevelt had not claimed an intrasession recess appointments power, and the report did not specifically consider that issue.

In 1921, Attorney General Harry Daugherty concluded that, contrary to the Knox opinion, the President has the authority to make recess appointments during an intrasession recess. Daugherty explained that the appointments provisions in the Constitution are designed "to prohibit the President from making appointments without the advice and consent of the Senate whenever that body is in session so that its advice and consent can be obtained." The relevant question as he saw it, therefore, was "whether in a practical sense the Senate is in session so that its advice and consent can be obtained." Daugherty also reasoned that a contrary interpretation of the clause could lead to "disastrous consequences."

Since 1921, executive branch lawyers consistently have interpreted the clause to apply to intrasession recesses. Particularly since the 1940s, moreover, presidents have made numerous recess appointments during intrasession recesses. In 1948, the Comptroller General, an officer of Congress, cited Daugherty's opinion as representing "the accepted view" on the question. At various times, however, individual senators have disagreed with this view.

2. "Vacancies that may happen during the Recess"

President Washington's Attorney General, Edmund Randolph, opined that the recess appointments power was limited to executive branch positions that become vacant during a recess. Instead of focusing on the semantic meaning of the text of the clause, Randolph reasoned that "[t]he Spirit of the Constitution favors the participation of the Senate in all appointments" and that the recess appointments power should be viewed as "an exception to the general participation of the Senate" and "interpreted strictly." Despite this opinion, presidents since at least the Madison administration (and perhaps earlier) have used the recess appointments power at various times to fill posts that became vacant before the relevant recess.

In 1823, President Monroe's Attorney General, William Wirt, reached a conclusion contrary to Randolph's, reasoning that the phrase "may happen" "seems not perfectly clear," because it could mean either "happen to take place" or "happen to exist." Wirt thought that the first reading would be more consistent with the "letter of the constitution," but that the second would be "most accordant with its reason and spirit." He observed that the purpose of the recess appointments power was to ensure that offices could remain filled and that if the President could not use this power to fill positions that remained vacant when the Senate went into recess, "the powers are inadequate to the purpose, and the substance of the constitution will be sacrificed to a dubious construction of its letter." After some inconsistency of views within the executive branch on this issue through the mid-nineteenth century, the President's legal advisers since that time have consistently agreed with Wirt's conclusion and have treated the question as settled.

In 1863, the Senate Judiciary Committee issued a report concluding that the recess appointments power applies only to positions that become vacant during the recess. The committee expressly disagreed with Wirt's reasoning, pointing out that keeping governmental offices filled is not the only constitutional interest at issue, and that another interest is ensuring that the offices are filled by well-qualified individuals. The committee also expressed the concern that, if a President could fill preexisting vacancies during recesses, he could deliberately bypass the senatorial process of advice and consent.

Shortly thereafter, Congress enacted the Pay Act, which prohibited paying recess appointees who were filling vacancies that preexisted the recess until the Senate confirmed their appointments. The act was enacted in the context of disputes over President Lincoln's appointment of military officers during the Civil War. The legislation was introduced by Senator Trumbull, who said that he did not think that the President had the constitutional authority to make recess appointments for preexisting vacancies but that "some other persons think he has that power." Senator Harris questioned Trumbull's constitutional claim, noting, among other things, that "however we may read the Constitution, for forty years the precedents have been against that theory."

Notwithstanding the act, the executive branch continued to endorse Wirt's conclusion about the scope of the Recess Appointments Clause, and presidents continued to make occasional recess appointments to preexisting vacancies. Congress paid those appointees retroactively after they were confirmed, and sometimes voted to pay them even if they were not confirmed. In 1927, the Comptroller General expressed the view that "there is no question but that the President has authority" to make those appointments. In 1940, Congress amended the Pay Act to allow for the payment, under various conditions, of recess appointees who were filling preexisting vacancies.

3. Duration of the Senate break

The duration of the break taken by the Senate generally has not been a significant issue for intersession recess appointments. The one exception is the controversy, noted above, about Theodore Roosevelt's appointments in 1903 during an instantaneous transition between Senate sessions. On other occasions, there has not been much controversy over intersession appointments even when the breaks have been fairly short, including when they have been less than ten days.

The length of the break has been an issue, however, for intrasession recess appointments. Attorney General Daugherty addressed that issue in the 1921 opinion discussed above. Although the recess in question there was almost a month long and thus seemed long enough, Daugherty thought it important to address the required length of the break "so as to avoid any misconception as to the scope of this opinion." "If the President is empowered to make recess appointments during the present adjournment," he asked, "does it not necessarily follow that the power exists if an adjournment for only 2 instead of 28 days is taken?" Daugherty "unhesitatingly answer[ed] this by saying no." He also disputed that "an adjournment for 5 or even 10 days can be said to constitute the recess intended by the Constitution." Beyond that, Daugherty doubted that one could specify a precise "line of demarcation," and he suggested that the President "is necessarily vested with a large, although not unlimited, discretion to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent of the Senate."

(Continues...)

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Table of Contents

After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession Curtis A. Bradley Neil S. Siegel 1

Bad Statutes Make Bad Law: Burwell V Hobby Lobby William P. Marshall 71

Organized Labor, the Supreme Court, and Harris v Quinn: Déjà Vu All Over Again? William B. Gould IV 133

The Party's Over: McCutcheon, Shadow Parties, and the Future of the Party System Joseph Fishkin Heather K. Gerken 175

Nonsense on Sidewalks: Content Discrimination in McCullen V Coakley Leslie Kendrick 215

The Religious Geography of Town of Greece v Galloway Paul Horwitz 243

Civil Liberties Outside the Courts Laura M. Weinrih 297