In Canning v. NLRB (No. 12-1115, January 25, 2013), the U.S. Court of Appeals for the D.C. Circuit invalidated presidential appointments during a claimed “recess” of the U.S. Senate on the ground that the vacancies had not arisen during that particular time period that the Senate was not in session. 

            They added a second ground for their opinion:  Recesses are only between legislative sessions and not at any other time.  The Senate was not in recess when the appointments were made because a new session had begun that same morning.

            In my opinion, four (4) facts are critical to understanding the ruling:

1.            The three judges are Republican appointments.

2.            The decision went against a Democratic president.

3.            The court provided its Constitutional interpretation of the word “recess,” even though this advisory portion of its ruling was unnecessary.  And,

4.            The 40-paged opinion makes only the briefest reference to the Senate’s resolution to remain in session by meeting “pro forma” every three (3) business days from December 20, 2011, through January 23, 2012 and conduct no business, while Senators were home for the holidays.

I.            Stale Vacancies

            Article II, Section 2 of the U.S. Constitution provides in pertinent part:

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.           

Emphasis supplied.

            I agree with the Court of Appeals that the vacancies at issue here could no longer be filled during any recess, because the Senate had been in session after the date that the vacancies arose.  In other words, “vacancies that may happen” are significantly different from “vacancies that exist”.  The court’s acknowledgement of this difference is consistent with the limited role that the entire sentence prescribes.  The president is only supposed to fill empty positions in government when the Senate is unavailable for advice and consent.  If, as here, the president selects a person to fill a job that has been open for more than a year, the Senate is entitled to be involved.

            The court’s ruling on this point is so clear and unassailable that the opinion should have gone no further.  It is universally recognized that judges refrain from ruling on matters that are not essential to the controversy before the court.  The single-judge concurrence respects this rule; the two-judge majority does not.

II.            The Rule of Reason

            I believe that the appropriate way to construe a constitution, in addition to only doing so when required, is to use the same set of interpretive tools as for interpreting a contract.  A court should accord some effect to words rather than none at all when given a choice between those alternatives.  And I believe that where plausible alternative explanations exist for the specific words utilized, it is wiser to lend more weight to recent interpretive conduct than to actions long ago.

            Ideally, the application of a rule of construction to this “inter-“ or “intra-“ session power of appointment should be a result somewhere between the extremes of never available and available anytime at all.  The extremes consist of never allowing such an appointment (because Senators no longer travel by stage coach and recess for six months at a time, and are empowered to paper-over their own recesses); and allowing the appointment on any weeknight when the Senate adjourns that same evening and intends to reconvene the following morning.

            A.            Originalism

            Part of choosing between too much and too little presidential power does not consist of lending persuasive weight to what people did in the times of our founding fathers.  Since those lengthy legislative recesses from the past no longer occur, confining us to a constitutional interpretation tailored to facts that no longer exist does not seem to make much sense.  Nate Silver’s recent book, “The Signal and the Noise” (Penguin Press, 2012) describes the fallacy of over-sampling as purporting to glean truth from massive relevant but immaterial data that is actually nothing more than background noise. 

In logic, indiscriminate reliance upon the past justifies the rubric “post hoc, propter hoc” (after this — because of this).  One event may follow another chronologically without any causal connection between them.  In other words, a prescribed manner of handling a set of facts three hundred years ago may precede us chronologically, but do so without shedding any light on how very different facts should be handled today.

            B.            Contemporary Conduct

            When judges construe ambiguity in contracts, they frequently look at conduct.  How parties themselves interpret ambiguous words often provides valuable insight into the words’ intended meaning.  Likewise, the centuries of life-experiences living under a constitution are going to be sometimes cumulative, and quite often transformative.  If a phrase is applied for centuries in different ways, logic would certainly suggest that recent conduct carry more evidentiary weight than conduct in the ancient past.  Just as custom and practice are important to determining words’ meaning in contracts, they should be in Constitutional law as well.

            The Canning case deals with two words, “adjournment” and “recess”.  Even people who are not legislators or constitutional scholars know the established meanings:  If Congress adjourns; it may be back the next morning.  If it is in recess, the members went home to their districts.  Either can take place in the midst of a “session”.  If the Senate is in recess, its members are unavailable to provide our president with “advice and consent”.  That is what I would call the form of the issue at hand, the key words and present-day definitions.

            What about the substance of the issue, namely the conduct of the U.S. Senate? 

“At the time of the President’s purported recess

appointments of the three Board members, the Senate was

operating pursuant to a unanimous consent agreement, which

provided that the Senate would meet in pro forma sessions every

three business days from December 20, 2011, through January

23, 2012. 157 Cong. Rec. S8,783–84 (daily ed. Dec. 17, 2011).

The agreement stated that “no business [would be] conducted”

during those sessions. Id. at S8, 783.”

Canning v. N.L.R.B., slip op. at 14.

            If courts allow the Senate to operate like this, then the Senate can easily prevent an Appointments Clause recess from ever occurring.  All they need to do when they are out of town is leave one senator in Washington to bang the gavel every three days.  This has the practical effect of making the Appointments Clause a nullity; it tilts the balance of power away from the President and in favor of the Senate.  The Senate cannot possibly be permitted by its own continuing resolution to render meaningless a clause of the U.S. Constitution.  This artifice – the illusion of in-session status — does violence to the Constitution.  It should never have been condoned by the U.S. Court of Appeals.[1]

            Moreover, the “substance” of the Senate’s conduct – the perpetuation for over 30 days of a pretense of being in session due to “pro forma” convocations without business being conducted and with most Senators far away – should be obvious to anyone without a political agenda.  The Senate was in recess.

            A fundamental rule of law is that you cannot do indirectly what you are not allowed to do directly.  For example, if a protective order requires you keep away from someone, you cannot enlist a relative to harass the person and thereby circumvent the order.  In the facts presented in Canning, the Constitution says that the Senate forfeits the right to advise and consent if it is in recess.  The Senate should not have been permitted to successfully deny that it was in recess by merely passing a bill declaring it was not in recess, while simultaneously making itself unavailable to advise, consent, or conduct business for over a month.

III.            Conclusion

            The U.S. Court of Appeals reached the correct result when they invalidated three (3) recess appointments of President Obama in Canning.  But in my view they went too far.  The court had no need to invoke the doctrine of originalism.  And it should not have ratified the patently false claim of the U.S. Senate that it was in session when in fact it had recessed.



[1] The majority notes that U.S. Const. art. I, § 5, cl. 4 provides, “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . .”.   I agree with the majority that since the Appointments Clause makes no mention of adjournment, this limitation on the right to adjourn is irrelevant to the issue before the court.