The SCOTUS Recess Decision: Right or Wrong on the History?

tags: SCOTUS

Jeff Shesol is the author of Supreme Power: Franklin Roosevelt vs. the Supreme Court. He is also a founding partner of West Wing Writers, a speechwriting and strategy firm, and the author of Mutual Contempt. From 1998 to 2001, Shesol served as a speechwriter to President Bill Clinton. A Rhodes scholar, he holds degrees in history from Oxford and Brown universities. 


A question: How many mid-session breaks lasting more than ten days did the United States Senate take before 1867? The answer: seven. It’s not just a trivia question; neither, as it happens, is the eighteenth-century definition of “happens.” These historical tidbits, and others like them, are of no small consequence in National Labor Relations Board v. Noel Canning, a case that the Supreme Court decided on Thursday. The 9–0 ruling, which praises the Presidential recess-appointments power only to effectively bury it, goes as deep in the archival weeds as any in recent memory. Justice Stephen Breyer, who wrote the majority opinion, has often expressed the concern that when Justices yield to ideological temptation, they become “junior-varsity politicians.” In Noel Canning, what we have is the Justices as junior-faculty historians.

Noel Canning is peculiar in that it drew all the Justices, not just the self-styled originalists, into a historical debate over the phrasing, purpose, and application of the Constitution’s recess-appointments clause in the early republic and since. The clause, in Article II, reads:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

“The constitutional text is ambiguous,” Breyer wrote. As it is on a couple of key questions: whether the words “recess of the Senate” apply only to breaks between sessions or include “intra-session” breaks (the Court held the latter), and whether the recess-appointment power applies to vacancies that arise before, not just during, a recess (the Court held that it does).

But the Court also held, crucially, that, within broad boundaries, “the Senate is in session when it says it is.” In doing so, the Court has sanctified the so-called pro-forma sessions that obstructionists have used to avoid triggering a recess and thus a chance for the President to make recess appointments. This means that the Senate has the power to avoid confirming Presidential appointments indefinitely, so long as someone shows up after a certain stretch—ten days, the decision on Thursday suggested—and bangs a gavel, even if no one else is there to hear it. Noel Canning thus fashions a recess-appointment power too enfeebled to survive in the wild.

The Court has never interpreted this clause before, and so, absent any precedent to guide them, the Justices hit the history books. Antonin Scalia, whose concurrence in this case is joined by the conservative trio of Clarence Thomas, Samuel Alito, and Chief Justice John Roberts, has long been comfortable in the role of historian, which cannot quite be said of his liberal colleagues. And so perhaps it’s not surprising that the two camps were looking for different things.

“In interpreting the Clause,” Breyer writes, “we put significant weight upon historical practice.” As Breyer’s opinion establishes, not only have Presidents “made countless recess appointments during intra-session recesses,” but “the Senate as a body has done nothing to deny the validity of this practice for at least three-quarters of a century.” When, and under what circumstances, and on what constitutional basis Presidents have made recess appointments—these are questions of particular importance when “the phraseology” of a constitutional provision “is in any respect of doubtful meaning,” in the words of a 1904 opinion quoted by Breyer. Thomas Jefferson thought that this was the case with the recess-appointments clause, as the majority points out: the passage, Jefferson observed, “is “certainly susceptible of [two] constructions.”...

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