The Original Meaning of Recess

THE ORIGINAL MEANING OF RECESS David J. Arkush* ABSTRACT This Article reevaluates the original meaning of “recess” in the Recess Appointments Clause. The dominant view of that word holds that it refers only to breaks between official Senate sessions. By identifying new evidence and correcting mistaken interpretations, this Article finds support only for the conclusion that the original public meaning of “recess” was ordinary and broad, referring to any time when a legislative body is not conducting business. The evidence does not support any particular limitation on recesses, although it does not rule out the possibility that one existed. For those seeking to limit “recess,” the Article poses four reasonable nonoriginalist limiting constructions. It also considers whether the divergence in views on “recess” can be attributed to methodological differences among originalists and finds that explanation improbable. Finally, the Article makes two general points that arise from its analysis: it may be more difficult than is widely appreciated to establish a specialized original meaning, and scholars making originalist claims should provide clear accounts of the scope and limitations of their research. TABLE OF CONTENTS INTRODUCTION ............................................................................. 163 I. THE ORDINARY READING OF RECESS ......................................... 169 A. Ordinary Reading: Text and Structure ............................. 169 1. Text: Dictionary Evidence and Interpretive Default Rules ................................................................... 169 2. Structure: The Rules of Proceedings Clause, the Senate Vacancy Clause, and the Textual Distinction Between * Visiting Assistant Professor, University of Richmond School of Law. J.D., Harvard Law School, 2003. This Article was written before the Supreme Court decided Noel Canning. It has been updated to comment briefly on the decision. Thanks to Will Baude, Don Braman, Rob Natelson, Kevin Walsh, and Brian Wolfman for helpful conversations or feedback related to this project. 161 162 JOURNAL OF CONSTITUTIONAL LAW [Vol. 17:1 Sessions of Congress and Sessions of the Senate ........... 171 B. Contemporaneous Usage .................................................. 175 C. Purpose ........................................................................ 184 D. History ........................................................................ 186 II. A CRITIQUE OF THE TECHNICAL POSITION ............................. 192 A. Contemporaneous Usage .................................................. 193 B. Structure: An Inference from “Adjournment” ..................... 196 C. Purpose ........................................................................ 199 1. The Duration of Recess Appointments ......................... 199 2. Line-Drawing and Judicial Administrability ............... 200 3. The Length of Recesses ............................................. 203 4. The Framers’ Expectations ........................................ 206 a. The Inter-session-Expectations Narrative ................. 206 b. A Counter-narrative: Military Responsiveness ........ 210 III. INITIAL EVIDENCE ON SESSION AND HAPPEN ......................... 212 A. Session ......................................................................... 212 B. Happen ........................................................................ 216 IV. CONTEMPORARY THEORIES OF ORIGINALISM AND THE RECESS APPOINTMENTS CLAUSE ............................................ 224 A. New Originalism ................................................................ 224 1. Original Public Meaning, Not Intent or Expectations ..... 224 2. Interpretation and Construction .................................... 225 3. Interpreting Recess ........................................................ 227 4. New Originalism and the Recess Question ..................... 228 B. Original Methods Originalism ............................................. 231 C. Original Defaults Originalism ............................................. 235 D. Living Originalism ............................................................. 236 E. Judicial Construction and Recess ......................................... 239 1. The Need for Constructions of Recess ............................. 240 2. Constructions of Recess ............................................ 243 a. Senate Control ...................................................... 242 b. Ordinary Meaning Plus Politics ............................. 244 c. A “Work Periods” View ........................................... 245 V. NOEL CANNING, ORIGINALISMS, AND THE RECESS APPOINTMENTS CLAUSE ......................................................... 248 A. Noel Canning and Originalism ........................................... 248 B. Originalisms and the Analysis of the Recess Appointments Clause .............................................................................. 252 1. The Difficulty of Establishing Narrow or Specialized Oct. 2014] THE ORIGINAL MEANING OF RECESS 163 Original Meanings ..................................................... 253 2. Methods of Objective Inquiry—and Originalist Claims and Disclaimers ......................................................... 254 CONCLUSION: ERASING THE RECESS APPOINTMENTS CLAUSE? ... 256 INTRODUCTION After more than a decade of skirmishes between the President and the Senate over the Recess Appointments Clause, the Supreme Court largely settled the matter in National Labor Relations Board v. Noel Can- ning.1 Constitutional scholars anticipated that the case might be his- torically significant in two ways. First, the Court might dramatically alter the balance of power between the President and the Senate by giving one of them a firm upper hand in appointments.2 Second, the case might produce a constitutional rarity: a Supreme Court decision squarely grounded in the original meaning of the Constitution.3 In fact, Noel Canning largely preserves recent practice regarding recess appointments. Indeed, in permitting appointments during intrasession recesses longer than nine days,4 as well as recesses from three to nine days long if justified by genuine need in unusual circum- stances,5 the majority made a point of “put[ting] significant weight upon historical practice.”6 The role of originalism in the opinions, however, is more compli- cated. The dissent-like concurrence, written by Justice Antonin Scal- 1 705 F.3d 490 (D.C. Cir. 2013), cert. granted, 573 U.S. __ (2014). 2 The President urged the Court to permit recess appointments liberally so that he could circumvent the Senate’s advice and consent authority. The challenger asked the Court to authorize the Senate to block virtually all presidential appointments, recess or otherwise, and leave the President unable to govern effectively. See David J. Arkush, The Senate and the Recess Appointments, 127 HARV. L. REV. F. 1, 1 (2013). 3 Cf. DAVID A. STRAUSS, THE LIVING CONSTITUTION (2010) (noting the rarity of cases like District of Columbia v. Heller, 554 U.S. 570 (2008), in which “original understandings [take] center stage”); Randy E. Barnett, The Gravitational Force of Originalism, 82 FORDHAM L. REV. 411, 420–32 (2013) (arguing that the “new originalist” emphasis on original public meaning has exerted a “gravitational force” on the Supreme Court even though its decisions rarely rely explicitly on original public meaning). 4 NLRB v. Noel Canning, No. 12-1281, slip op. at 20–21 (U.S. June 26, 2014) (“[W]e have not found a single example of a recess appointment made during an intrasession recess that was shorter than 10 days.”). 5 Id. at 21 (“We . leave open the possibility that some very unusual circumstance—a national catastrophe, for instance, that renders the Senate unavailable but calls for an ur- gent response—could demand the exercise of the recess-appointment power during a shorter break.”). 6 Id. at 6 (emphasis omitted). 164 JOURNAL OF CONSTITUTIONAL LAW [Vol. 17:1 ia, purports to be grounded in the original meaning of the Recess Appointments Clause. It adopts a view promoted by originalist scholars in recent years, which rapidly has become the predominant view of the Clause’s original meaning. This Article presents new evidence and argument that this view of the original meaning of the Clause is almost certainly mistaken, at least regarding the word recess, and like- ly regarding the word happen as well. Curiously, the majority, while not expressly originalist, comes closer to reflecting the Clause’s original meaning. Until recently, all three branches of government believed that “recess” for constitutional purposes has an ordinary, general meaning that refers to any time the Senate is not sitting for business, with the possible limit of a minimum duration. That longstanding consensus began to erode rapidly after the publication of a 2005 law review article by Michael Rappaport arguing that “recess” originally had a narrow, specialized meaning.7 In Rappaport’s view, the Clause contem- plated only the long breaks between annual, formal sessions of the Senate, which in the present day are sometimes called “inter-session” recesses.8 Rappaport also argues that the President may only fill a vacancy if it arises during the relevant recess.9 The combination of the- se positions would all but read the Recess Appointments Clause out of the Constitution. In the present day, inter-session recesses are of- ten very short, and sometimes the Senate does not take one at all.10

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