OK

Judge David Sentelle
Judge Sentellle, providing hackery for over 3 decades.
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. - U.S. Constitution, Article II, Section 2, Clause 3
On January 25, 2013, a three judge panel of the US Court of Appeals for the District of Columbia Circuit issued  a decision (PDF) that was, in my view,  stunning in its partisan hackery. What it does, in essence, is eliminate the President's power to make recess appointments, despite the text of Article II, Section 2, of the Constitution.

The DC appeals court panel thrust itself into the political struggle between President Obama and the Republican caucus  in the House (this is due to the need for both houses of Congress having to agree to an adjournment (or recess?)  regarding the power of the President to name members of his Administration. It did so by legitimizing the Republican minority's use of the filibuster to prevent the President from naming members of his Administration subject to confirmation and delegitimizing the president's power to make recess appointments in response to Republican obstructionism.  

But why, you might ask, is the court's siding with the House, necessarily an act of partisan hackery? To me the answer is simple (as simple as thinking about Bush v. Gore): would this panel have issued this opinion if the president were a Republican and it was a Democratic House thwarting (through failing to agree to an adjournment of Congress)  the president's appointment power? Would THIS panel have ruled that a Republican president's recess appointments were invalid? Would it have even heard the case? I believe the answers are obvious: No. Never. No how. No way. YMMV.

Ok fine, you might say, the motivations were partisan, but what about the opinion itself? Does it hold up? Does it make sense? Well, here is the cherry on top - the opinion is not just partisan, it  is "originalist" partisan hackery.

I'll explain why I think so on the other side as I review the reasoning in the decision.

The pernicious use of the the word "originalism" to describe right wing extremism in the judiciary is something many thoughtful legal scholars have been attempting to grapple with. In a rather ironic blog post at Balkinization, Jason Mazzone writes:

Originalism's proponents on the Court (and in the academy) don't seek to "identify the original intent of the framers" because (a) their focus is on original public meaning not intent and (b) the framers' views/intent are not decisive in determining that meaning. Moreover, it takes a remarkable obtuseness to conclude that originalists believe eighteenth-century meaning can "resolve any modern controversy." Just the opposite: originalists often say that the Constitution is entirely silent on an issue presented--abortion, say--and resolution of it must therefore be left to the political process. [Emphasis supplied.]
This is a laughably naive, to put it charitably, description of "Originalism's proponents on the [c]ourt." (Perhaps Mazzone is speaking only of the Supreme Court, but if so, that is an incredibly narrow reading of where the "Originalism"  school resides.) For example, one of the Federalist Society's leading lights is  David Sentelle, chief judge of the D.C. Circuit. Let's see how he practiced originalism in the recess (I deliberately use the lower case for "recess" for reasons that will soon become apparent) appointments case:
The Board contends that despite the failure of the President to comply with Article II, Section 2, Clause 2, he nonetheless validly made the appointments under a provision sometimes referred to as the “Recess Appointments Clause,” which provides that “[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.” Id. art. II, § 2, cl. 3. Noel Canning contends that the putative recess appointments are invalid and the Recess Appointments Clause is inapplicable because the Senate was not in the recess at the time of the putative appointments and the
vacancies did not happen during the recess of the Senate. We consider those issues in turn.

A. The Meaning of “the Recess”

Noel Canning contends that the term “the Recess” in the Recess Appointments Clause refers to the intersession recess of the Senate, that is to say, the period between sessions of the Senate when the Senate is by definition not in session and
therefore unavailable to receive and act upon nominations from the President. The Board’s position is much less clear. It argues that the alternative appointment procedure created by that Clause is available during intrasession “recesses,” or breaks in the Senate’s business when it is otherwise in a continuing session. The Board never states how short a break is too short, under its theory, to serve as a “recess” for purposes of the Recess Appointments Clause. This merely reflects the Board’s larger problem: it fails to differentiate between “recesses” and the actual constitutional language, “the Recess.”

It is this difference between the word choice “recess” and “the Recess” that first draws our attention. When interpreting a constitutional provision, we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution. District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008). Then, as now, the word “the” was and is a definite article. See 2 Samuel Johnson, A Dictionary of the English Language 2041 (1755) (defining “the” as an “article noting a particular thing” (emphasis added)). Unlike “a” or “an,” that definite article
suggests specificity. As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said “the Recess,” what they really meant was “a recess.” This is not an insignificant distinction. In the end it makes all the difference. [Emphasis supplied.]

Contra Mazzone's assertion, this is the "originalist" alchemy -- "we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution." Its application is absurd in almost every case. It is especially so as implemented by Judge Sentelle. Consider the words of the clause he purports to be interpreting:

 

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.
What is the significance of the capitalization of the words "Power," "Vacancies," and "End." Does it implicate the reasoning in this case? I think it does. It indicates that the use of capitalization in the text of the Constitution in this clause is meaningless.

What of the use of the article "the" before the word "Recess?" Let's consider the first words of Article II:

The executive Power shall be vested in a President of the United States of America.
The executive power shall be vested in the President. The executive power  includes "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 battle of the "thes."

But that "the" does not concern Judge Sentelle, at least not in this case (if you doubt Sentelle would not think very highly of the executive "the" if it came to, say, warrantless wiretapping, you do not know Sentelle very well.)

Does Judge Sentelle rest his surmise as to "the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution" on anything besides the use of the article "the" and the capitalization of the word "Recess"? Well he pretends to at least:

Six times the Constitution uses some form of the verb “adjourn” or the noun “adjournment” to refer to breaks in the proceedings of one or both Houses of Congress. Twice, it uses the term “the Recess”: once in the Recess Appointments Clause
and once in the Senate Vacancies Clause, U.S. Const. art. I, § 3, cl. 2. Not only did the Framers use a different word, but none of the “adjournment” usages is preceded by the definite article. All this points to the inescapable conclusion that the Framers intended something specific by the term “the Recess,” and that it was something different than a generic break in proceedings.
No. seriously, that's what Sentelle's say makes his conclusion "inescapable." Well, let's check his work shall we? As to the use of "adjourn" or "adjournment," here is how the Constitution uses those words:
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. [...]

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. [Emphasis supplied.] - Art. I, Section 5.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. [Emphasis supplied.] Art. 1, Section 7.
[The President ...]  may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper [...] [Emphasis supplied] -Art. II, section 3.
It is inescapable that it takes an originalist partisan hack of epic proportions to say that these usages in the Constitution prove a gawd damn thing.

But this is not the height of the hackery. Sentelle's reasoning on the impermissibility of "intrasession" recess appointments reaches new heights of absurdity:

The structure of the [Recess Appointments] Clause is to the same effect. The Clause sets a time limit on recess appointments by providing that those commissions shall expire “at the End of their [the Senate’s] next Session.” Again, the Framers have created a dichotomy. The appointment may be made in “the Recess,” but
it ends at the end of the next “Session.” The natural interpretation of the Clause is that the Constitution is noting a difference between “the Recess” and the “Session.” Either the Senate is in session, or it is in the recess. If it has broken for three days within an ongoing session, it is not in “the Recess.

It is universally accepted that “Session” here refers to the usually two or sometimes three sessions per Congress. Therefore, “the Recess” should be taken to mean only times when the Senate is not in one of those sessions. [Emphasis supplied.]
There are many "universally accepted" truths (not just the ones identified by Jane Austen) but never before have I seen such a shameless application of "everybody knows" logic in a supposed legal opinion. In fact, no one knows this and to put a point on it, the Framers certainly did not know how many "sessions" future Congresses would hold. In fact, the text of the Constitution leaves the question of how the Congress is run to, you guessed it, future Congresses. Article I provides, in pertinent part:
Section. 4.

[...] The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

Section. 5.

[...] Each House may determine the Rules of its Proceedings [...]

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. [Emphasis supplied.]

Didn't Judge Sentelle emphasis the importance of the word "the?" Doesn't the phrase "the Session of Congress" mean that there shall be only one Session for each Congress? Doesn't this require Judge Sentelle to state that in fact, the president has no recess power at all, except for the period between the ending of "the Session" of one Congress and the beginning of "the Session" of the next Congress? And doesn't that mean that the President's recess appointments would have a duration of weeks?

That seems an "inescapable conclusion" of application of Judge Sentelle's interpretive methods. There is no "universally acknowledged" truth of 2 or 3 sessions of each Congress. There is "the Session" and "the Recess" between Congresses of a few weeks.

Violating the tenets of originalism by straying from the text, Judge Sentelle piles specious argument after specious argument on his absurd and inconsistent interpretation of the text of the Constitution. He argues that historic practice supports his view because for the first 80 years of the Nation, no President made a recess appointment. Of course, what Judge Sentelle means is that for the past 160+ years, presidents have routinely made intrasession recess appointments.

In one of Judge Sentelle's more brazen bits of disingenuousness, he cites to Federalist 67 for supposed support of his interpretation.  In Federalist 67, Hamilton was answering the Sentelles of his day, the anti-federalists, and their absurd argument that the Constitution provided the power to the president to appoint Senators!

Here the writers against the Constitution seem to have taken pains to signalize their talent of misrepresentation. [...] Attempts so extravagant as these to disfigure or, it might rather be said, to metamorphose the object, render it necessary to take an accurate view of its real nature and form: in order as well to ascertain its true aspect and genuine appearance, as to unmask the disingenuity and expose the fallacy of the counterfeit resemblances which have been so insidiously, as well as industriously, propagated. [...] They so far exceed the usual though unjustifiable licenses of party artifice, that even in a disposition the most candid and tolerant, they must force the sentiments which favor an indulgent construction of the conduct of political adversaries to give place to a voluntary and unreserved indignation. [...]

In one instance, which I cite as a sample of the general spirit, the temerity has proceeded so far as to ascribe to the President of the United States a power which by the instrument reported is expressly allotted to the Executives of the individual States. I mean the power of filling casual vacancies in the Senate. [Emphasis supplied.]

I feel about Judge Sentelle what Hamilton felt about his intellectual opponents - an unreserved indignation for the unscrupulous tactics he employs. A less contemptuous analysis of the errors of Judge Sentelle is provided by Peter Shane:
For all the controversy surrounding these appointments, they were clearly constitutional if either of two things is true.  They were constitutional if, despite the pro forma sessions, the Senate was in recess from December 20 until January 23.  If that hiatus amounted to a “recess” for purposes of Article II, Section 2, then the President’s exercise of his appointment prerogative was permissible.  The appointments would also be constitutional, of course, if the three-day hiatus between January 3 and January 6 was a “recess” for constitutional purposes.  The President had plausible arguments either way.

This is not a slam dunk legal issue.  The Justice Department’s Office of Legal Counsel had issued a well-reasoned opinion asserting the permissibility of the appointments.  For his part, Charles J. Cooper, a former OLC head under President Reagan, provided a thoughtful rebuttal in testimony to the House Education and Workforce Committee.

What is striking, therefore, about the D.C. Circuit opinion is not its bottom line, but the scope of its reasoning.  Despite a pretense of constitutional modesty, the court decided the Recess Appointments issue — which the appellant had not raised to the NLRB itself — on the broadest possible ground. The court decided not that the Senate’s pro forma sessions prevented it from having a sufficiently long recess or even that its conceded three-day adjournment was too short to count as a recess. Instead, it held that recess appointments may occur only if the Senate is between sessions, for example, after it has adjourned for the first session of the 113th Congress, but before the 2nd session convenes.

Then, for good measure, two of three judges held the appointments impermissible because the NLRB seats did not actually become vacant during such an intersession recess. As they read the Constitution, unless an office actually becomes empty during a recess, it cannot be filled during a recess.  (As the third judge observes in a separate opinion, this second holding disregards about 190 years of contrary understanding by Congress and the Executive.)

[...] The court’s key defense of its interpretation of “recess” to mean only a recess between sessions is that no other interpretation would provide the courts an easy-to-implement bright-line rule.  It is worth noting, however, that – like many bright-line rules – this one makes little sense.  As recounted by Senate associate historian Betty K. Koed (and quoted by reporter Al Kamen), “At high noon on Dec. 7 1903,” the Senate president pro tem brought down the gavel to end one session of the Senate and then immediately brought a second session to order.  “In that moment between sessions,” she wrote, “during that split-second of time it took . . . to wield the gavel, President Theodore Roosevelt made 193 recess appointments.”  These appointments would have satisfied the D.C. Circuit’s bright-line rule.

Conversely, should the 2013 Senate, within a single session, now leave town for three months with key executive branch positions unfilled, the President – according to the D.C. Circuit – may do nothing.  I dissent.

This all makes sense. But I save my most significant objection for last - this dispute is a political question between the Congress and the President. The courts have no business deciding this issue. Shane details the politics:
On Wednesday, January 4, 2012, President Obama appointed three new members for the National Labor Relations Board.  He also named Richard Cordray to serve as director of the Consumer Financial Protection Bureau.  To do so, he invoked his recess appointments power under Article II, Section 2, paragraph 3 of the Constitution.  This is the power “to fill up all Vacancies that may happen during the Recess of the Senate.”

The majority Democrat Senate, in this case, had previously convened most recently on Tuesday, January 3, 2013 for a session that lasted 41 seconds.  These 41 seconds were devoted to two items.  The first was a reading by the Senate clerk of a letter from the Senate’s then-President Pro Tem, Senator Inouye.  The letter confirmed the appointment of Senator Mark Warner for the day to perform the duties of the Chair.  The second item was Senator Warner performing exactly one such duty.  Namely, he adjourned the Senate until its 29-second session on Friday, January 6.  Senators living close to D.C. had been performing these rituals at three-day intervals since December 20, 2011.  Their performances implemented a Senate order, adopted by unanimous consent on December 17, providing that the Senate would then adjourn but, until January 23, 2012, convene every three days for “pro forma sessions only, with no business conducted.”  The reason for this ritual was the decision of the majority Republican House of Representatives, under Article I, Section 5, Paragraph 4 of the Constitution to withhold its consent to a Senate adjournment of longer than three days.  The House Republicans were of the view that keeping the Senate on a three-day leash would prevent the President from making recess appointments and doing an end-run around the Senate Republicans’ filibusters. [Emphasis supplied.]

A political power grab by House Republicans is countered by presidential use of the recess appointment power. Who should decide this political power question? Jot the courts. This is not a case of an enacted law being violated by the president (see George W. Bush's violation of FISA.) This is not a president violating a constitutional right (see George W. Bush, and his violation of the habeas right.) This is not even a president acting inconsistently with the procedures set out in a duly enacted law (See Youngstown v. Sawyer.

Here the Constitutional provisions are vague, at best. The answer is unclear from the text. The argument was not raised by the party in interest (but it was raised by the Republican amici brief filed by Miguel Estrada). The challenged practice has a significant history.

What is different is the extraordinary political actions of the Republican Party in its attempts to thwart the exercise of presidential power by a Democratic president (who is, oh by the way, an African American.) this is a political dispute between the president and the Congress. There is no place for the courts in this.

Unless of course the court in question is stuffed with "originalist" partisan hacks like David Sentelle. Then there is no better time to get involved.

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