Judge David Sentelle’s opinion for the D.C. Circuit dismissed the possibility that his interpretation might impede the president in his constitutional obligation to “take Care that the Laws be faithfully executed.” He writes: “[I]f some administrative inefficiency results from our construction of the original meaning of the Constitution, that does not empower us to change what the Constitution commands.”
The anti-government myth, however, is at best only part of the story. And that is the side I tried to present as a counter to Francisco’s narrative. The Framers’ institutional design was intended to create an effective government. “[T]he true test of a good government,” Alexander Hamilton wrote in Federalist 68, “is its aptitude and tendency to produce a good administration.”
In April, 1787, in preparation for the Philadelphia Convention, James Madison prepared a document listing eleven “Vices of the Political System of the United States.” The first seven of these defects—including “[w]ant of concert in matters where common interest requires it”—speak directly to the efficacy of government. Only the last three vices in his list had any sort of anti-government cast. The Framers, in John Marshall’s words, “had experienced the embarrassments” of government under the Articles of Confederation. They wanted a government that worked.
Seen in this light, the narrow reading of the Recess Appointments Clause is perverse. There is nothing liberty-protecting in the capacity of the Senate to undermine public administration by stonewalling the nominations of perfectly qualified government officers. Senators did not object to the Obama NLRB nominees on the basis of qualifications. A minority—still equipped with the filibuster—wanted only to hamstring the NLRB.
The Framers intended the president to take the leading role in staffing the executive branch. Urging New Yorkers to support the Constitution, Alexander Hamilton explained the design of the appointments process: “[O]ne man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.”
The Senate was given a role in the appointments process not to impede the president’s policy agenda but to prevent corruption: “[The Senate] would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”
Protecting the Senate’s confirmation role at the expense of the president’s appointments responsibility turns the constitutional design on its head.
Next week, Francisco will likely point out that we are no longer living in a horse-and-buggy world; the Framers could not have foreseen a Senate that can meet on a few hours’ notice. Giving the Recess Appointments Clause its logical scope is no longer needed to overcome the inefficiencies of a legislative body difficult to reconvene.
But the Framers also did not foresee a Senate that would refuse even to debate, much less confirm, routine appointments. Giving the Recess Appointments Clause its logical scope addresses this problem directly. Luckily, the Framers did not write language addressing only 1787 issues. Instead, they gave us a text we can and should apply to the needs of our time.