A decision on Obama's recess appointment power shows why judicial originalism is an exciting game without any rules.
The early returns on the D.C. Circuit Court of Appeals' sweeping "recess appointments" decisions are not favorable. Kenneth Jost of CQ Press called it "astounding." The three-judge panel went "on a tear," he adds. Jeffrey Toobin of the New Yorker called it an "extravagant act of judicial hubris," in which "three federal judges revealed themselves as Republican National Committeemen in robes." Prominent separation-of-powers theorist Peter Shane posted not one, or even two, but three criticisms of the decision. Noel Canning v. National Labor Relations Board, he wrote, "is a little like a Rob Schneider movie -- the more you think about it, the worse it seems."
Even some right-of-center commentators have expressed mixed emotions. In a Federalist Society podcast after the decision, Chapman University professor John Eastman praised the decision as a check on executive power tyranny. Michael Rappaport of the University of San Diego defends the decision against charges of partisanship, and told me in an email that he found the analysis basically correct.
Judicial originalism centers on the idea that one judge can somehow know the "real meaning" of a provision enacted centuries ago, in a world as alien to ours as Narnia.
But Michael Greve of George Mason wrote that the opinion seemed "a tad doctrinaire." Writing in the Wall Street Journal (subscription required), John Yoo, formerly of the Bush Justice Department, blamed President Obama for setting up the situation, but cautioned that the opinion "has jeopardized a vital executive power for all future presidents." John Elwood, also a former Bush Justice official, mildly noted that "the panel would have benefited" from actual briefing on the questions it decided.
Noel Canning invalidates President Obama's recess appointments of three members of the National Labor Relations Board. Under the "recess appointments" clause of the Constitution, Article II § 2 cl. 3, "[t]he 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."
Obama had made his appointments during a period when the Senate -- because of a tricky maneuver by the Republican House -- was blocked from taking a full recess, but instead was holding one-minute, one-member "pro forma" sessions every three days at which no business was or could be conducted. This was the equivalent of a recess, Obama's lawyers reasoned, and so the clause permitted him to make temporary appointments.
The specific case is very close. The "pro forma" sessions maneuver is a novel one -- pioneered, in an exquisite irony, by Senator Harry Reid as a means of blocking appointments by the George W. Bush White House. A decision against the administration on the narrow issue of "pro forma" appointments would have had bad practical consequences -- the NLRB and the Consumer Financial Protection Bureau would have ground to a halt. But it would have been defensible as application of the Constitution's text, history, and structure to the existing body of legal precedent -- that is, as the kind of work we expect a court to do.
The three-judge panel of the D.C. circuit, however, went beyond the "pro forma" question and decided two issues that were arguably not even before it. First, it said, the president can make recess appointments only between formal sessions of Congress, not when the Senate is genuinely adjourned during a session. (Two-year Congresses are usually divided into two sessions, with typically a few weeks' gap at the end of the year between them.)
Second, it said that the recess power only applies if the vacancy itself arises between sessions. In other words, a job that comes open while Congress is in session can never be filled by a recess appointment, even if the Senate adjourns completely without acting on a nomination.
This broad, indeed radical, decision illustrates the problem with "originalism" as a method of deciding, rather than analyzing, cases. Evidence from the period when a constitutional provision was framed is always relevant to a judicial decision. But so are subsequent caselaw, interpretation by other branches, and simple practicality. A court that claims to have discovered the "right" answer as a matter of "original intent," or "original understanding," or "original public meaning," may consider itself freed from all that messy precedent and history.
That's particularly unfortunate because the theory of judicial originalism centers on an indefensible intellectual claim -- that one judge, or a multi-judge panel, can somehow know the "real meaning" of a provision enacted centuries ago, in a world as alien to ours as Narnia or Barsoom. There is no recognized method for establishing such a "real meaning." In the hands of this panel, or of Justices Antonin Scalia or Clarence Thomas, the attempt often resembles Tegwar, the card game invented by baseball players in Mark Harris's Bang the Drum Slowly. The name stands for "The Exciting Game Without Any Rules." The game's chief function is to fleece suckers in hotel lobbies. Bad originalism, however sincerely intended by its judicial purveyors, is a hustle, too.
Take the Noel Canning court's claim that recess appointments may only be made between sessions, no matter how long a recess the Senate may take during sessions. That decision rests entirely (I'm not making this up) on the court's parsing of the meaning of the word "the." The Recess Clause says that the president may make temporary appointments only during "the recess of the Senate." The judges consulted Samuel Johnson's 1755 Dictionary of the English Language. That entry reads, in its entirety, "The, article, denoting a particular thing."
"The recess of the Senate," therefore, must mean one and only one "recess" per Senate -- the unique one between sessions. To any living speaker of English, the word "the" can also denote one instance of a recurring but definite phenomenon. Thus, for example, when someone speaks of "the hours of darkness," very few of us would interpret those words as referring to the one night of the year when darkness would be longest.
In 2004, the Eleventh Circuit used that meaning to reach the squarely opposite result on the "recess" question. In Evans v. Stephens, that panel wrote, "We do not agree that the Framers' use of the term 'the' unambiguously points to the single recess that comes at the end of a Session." It drew its evidence from the Oxford English Dictionary.
OED, written over the past century and a half,is the most complete historical dictionary of the language ever assembled; it draws on examples of usage dating back before 1000 C.E. Its entry on "the" is nearly 10,000 words long (Johnson's, remember, is six). Here's the relevant language: "Referring to a term used generically or universally," as in "the pen is mightier than the sword," or "with names of days of the week, as on the Monday, i.e. on Monday of any or every week, on Mondays generally." The entry includes examples of that usage going back to 1340.
That would seem like pretty powerful counter-evidence, except that the D.C. circuit is playing Tegwar. Its opinion changes the rules of the "originalist" quest to ignore OED by classifying itas a "modern dictionary" that simply does not count.
Because it claims to have discovered, so to speak, the meaning of "the," the circuit panel can not only ignore the Eleventh Circuit Court, but also the practice of presidents -- often accepted by the Senate -- going back nearly 200 years. It can also ignore the practicalities of running a huge executive establishment in times of divided government. That failing is what inspires the tepid conservative reactions cited above. Yoo and Elwood know that sometimes the government has to function, and that a recalcitrant Senate can be a major hindrance to a president of either party.
For that reason, the D.C. circuit's opinion needs to go, even if the NLRB appointments, and the appointment Richard Cordray as Director of the Consumer Financial Protection Bureau, do not survive. The panel opinion can be vacated by the full court, which would be a wise and indeed judicious act. At any rate, because of the different results in the two circuits, the issue is almost certainly headed to the Supreme Court.
Alas, that means we will be treated to another tendentious disquisition about Founding-era dictionaries; with luck, it will appear in dissent, not in the opinion of the court.