The Myth of the Anti-Government Constitution

The Supreme Court should overturn a circuit-court ruling in Noel Canning v. NLRB that would hamstring the president's ability to make recess appointments.
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Howard Chandler Christy/Public Domain

Last November, I got a preview of the oral argument for National Labor Relations Board v. Noel Canning, the case about recess appointments that the Supreme Court will hear Monday. Noel Francisco, the attorney who will represent the Noel Canning company in challenging those appointments, was my debate opponent at my local Federalist Society chapter. I’m an academic on the progressive end of the spectrum with expertise in separation of powers law; I’d been invited as I sometimes am by conservative colleagues to represent that perspective with noted legal figures aligned with their point of view.

Francisco proved a powerful and congenial advocate. What intrigued me most was the clever narrative with which he framed his defense of the D.C. Circuit result. This narrative, I think, should be called the Myth of the Anti-Government Constitution.

The justices must decide whether Obama's three January 2012 appointments to the National Labor Relations Board properly fell within the president’s constitutional 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 D.C. Circuit overturned the Obama appointments for two reasons, both supposedly rooted in the original meaning of this constitutional clause.

First, according to the court, the text would have been understood in 1787 to authorize presidential appointments only during breaks between sessions of the Senate, not breaks during sessions of the Senate. The disputed Obama appointments occurred on January 4, 2012, a day after a session of the Senate had formally convened but during a hiatus of three or 20 days—the scope of the relevant break is itself a matter of legal dispute—when the Senate was adjourned.

Second, two of three judges concluded that the president’s power applies only to offices that actually become vacant during such an intersession Senate break. It would not apply to the National Labor Relations Board vacancies Obama filled in 2012—and assuredly not to many, if any, of the hundreds of other vacancies that, according to the Congressional Research Service, presidents have filled with recess appointees since 1981.

In defense of the Obama appointments, I argued that the D.C. Circuit’s opinion has two glaring problems. First, a 2013 Third Circuit opinion, which held another NLRB recess appointment invalid on other grounds, conclusively demonstrated that the D.C. Circuit’s textual analysis on the first point was wrong. State legislative practice around the time of the founding, the Third Circuit made clear, routinely understood “recess” to mean intrasession, as well as intersession breaks in legislative business.

Second, the D.C. Circuit’s limitation of the clause to vacancies that first open up during a recess has not been followed since the 1820s. That limitation is so obviously impractical that I foresee no real prospect that the Supreme Court will endorse it.

But as Francisco told the story during our debate, the case has little to do with practicality and much to do with freedom. Making appointments a joint responsibility of president and Senate, he told the audience, reflected the Framers’ belief that dividing power between the branches protects liberty by making it hard for government to act quickly or decisively. The “recess appointment” power is an afterthought, thrown into the Constitution to accommodate a problem that no longer exists—the long breaks between Senate sessions in the nation’s new capital, and the difficulty, in an age of horses and buggies, of calling an emergency session. Hence, Francisco concluded, the power of making recess appointments should be defined narrowly in favor of maintaining the liberty-protecting system of Senate review of presidential nominations. It should not be an excuse for the president to usurp the power of the Senate.

Such is the Myth of the Anti-Government Constitution. In Francisco’s narrative, it is not merely that the Framers wanted to avoid re-creating a monarchy. They actually sought to make it difficult for government to function. If the Senate can’t come to terms with the president, then liberty demands that the government be paralyzed.

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Peter M. Shane is Jacob E. Davis and Jacob E. Davis II Chair in Law at the Ohio State University's Moritz College of Law.

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