Let's Stop Treating the Constitution Like the Da Vinci Code

"Originalism" allows judges to read into the founding document any ideas they want. Nowhere is the problem clearer than in the ongoing saga of the presidential recess appointment power.
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Leonardo Da Vinci/Wikimedia Commons

When "originalism" came on the scene in the 1980s, it was promoted as a means of keeping judges from writing their "personal views" into law.

If that was its intent, the "originalist" movement is an abject failure. As a field of scholarly and historical study, originalism -- the study of the historical background of the framing of a constitutional provision -- is valuable and bracing. But most judges are neither historians nor scholars, and for judges, "originalism" can be a powerful tool for attributing contemporary policy views to the Framers.

This can be illustrated neatly by the D.C. Circuit's decision in Noel Canning v. National Labor Relations Board, which destroyed the federal agency charged with safeguarding the rights of Americans to organize labor unions and bargain with their employers.

The panel held that, because the majority of members of the Board had been "recess appointments" named during a Congress rather than between Congresses, they were not validly appointed.

There was a perfectly good argument that the appointments were invalid -- President Obama made these appointments while the Senate was holding "pro forma" sessions every three days. The "pro forma" move was a dodge originally invented by Democrats. It would have been cynical, but a reasonable judge could certainly have held that the Senate was not "in recess." But the panel of judges in Noel Canning went much further, effectively crippling the executive branch's ability to act when faced with Senate intransigence. This is a huge change in the balance between the branches, made apparently on the basis of a quick trip to the dictionary.

A new report by the carefully non-political Congressional Research Service (CRS) points out two things that are missing in the panel's opinion -- precedent and practicality. Both should form part of any judicial decision. Noel Canning shows us how "originalist" rhetoric can allow judges to bypass crucial judicial craft, and instead write into law personal theories of what a constitutional provision "really" meant when it was adopted.

Briefly put, the majority in Noel Canning noted that the language in the Recess Appointment Clause (Article II § 2 cl. 3) gives the president the power to make temporary appointments during "the recess" of the Senate. These appointments, if not confirmed by the Senate, expire at the end of the next congressional session. For at least a century, presidents -- with congressional acquiescence -- have interpreted that clause as giving them the ability to make appointments any time when the Senate is not in session. But Chief Judge David Sentelle looked up the six-word entry for "the" in Samuel Johnson's Dictionary of the English Language, published in 1755, and found that its "original public meaning" was "noting a particular thing," meaning that there can be one and only one "recess" of the Senate. He and fellow Judge Karen Henderson went on to opine (on an issue not really before the court) that a president can never make a "recess" appointment if the vacancy to be filled arose while Congress was in session.

It's common to characterize the decision as a cutback of the president's power; but it is, in fact, an assault on the ability of government to function at all.

The careful research in the CRS report illustrates just how important "recess appointments" have been. In eight years, President Ronald Reagan made 232 recess appointments that would apparently have been void under the Noel Canning Rule. George H.W. Bush made 78 in his four years. Bill Clinton, in eight, made 139. George W. Bush made 171. Despite the shouting over Obama's "extension" of executive authority, he in fact has made only 32 recess appointments in his four years.

Study the list, moreover, and some names and titles leap out. Alan Greenspan as Chairman of the Federal Reserve Board was a recess appointment; so was Lawrence Eagleburger as Secretary of State. Ambassadors to key Arab states were recess appointments, as well as top officials at the Department of Justice, and the first African-American judge of a Southern court of appeals (later reappointed by a president of the other party). The largest category, however, includes appointees to multi-member agencies like the NLRB -- agencies that cannot function without a quorum of appointed members. As near as I can tell, virtually all the members of the NLRB have been recess appointments for the past three decades, along with the members of the board of the Legal Services Corporation.

The theme here is practicality. Presidents put recess appointees in place because government may need key personnel to face crises -- economic, foreign, and domestic -- and because government agencies need to function. Not all of the figures named are giants of American history. But when the Senate will not act on a nomination, someone has to fill it, or government will just stop working. There's every reason, in fact, to think that this is why the Recess Appointment Clause is in the Constitution in the first place -- to make sure the government functions in case of disaster or paralysis.

The Noel Canning majority is, let's say, insouciant about the dangers of paralysis. Instead, it explains the recess appointment power as a protection of "liberty" -- apparently meaning that government ought to be paralyzed most of the time. "Originalists" often affect disdain for practicality. We're just channeling Madison, they say; if you think it's a bad idea, amend the Constitution.

The CRS report shows something else. Judges are supposed to begin with precedent and build the law case by case. The issue the Noel Canning court decided was far from new, and presidents of both parties -- dating back nearly a century -- had been making recess appointments that are illegal under the brand new "originalist" rule.

The D.C. Circuit did not just brush by the experience of 15 presidents; it also dismissed a contrary opinion by the Eleventh Circuit because it was based on a "modern dictionary" rather than good old Samuel Johnson. That's the other advantage of "originalist" rhetoric: precedent doesn't count. If you've discovered secret truth -- the code hidden in The Last Supper, say, or the "original meaning" of the Recess Appointments Clause -- no one else's opinion matters.

In this case, a quick glance at a dictionary written more than a quarter-century before the Framing, in another country, was enough to sweep away any counterarguments -- most particularly the argument that, whatever words the Framers may have chosen, they were designing a government that would work, not one that would fall apart whenever 40 senators felt grumpy.

Noel Canning is a particularly clear illustration of a general truth. When someone who knows history brings up the minds of the Framers, prepare to be enlightened.

Alas, when a judge does the same thing, lock up the silver.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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