Eric Posner on Originalism and Recess Appointments

Indefinite Articles
Eric A. Posner
Slate
March 19, 2013

Last week, the Obama administration asked the Supreme Court to review a lower court ruling that several so-called recess appointments made by the president were invalid. The court’s opinion is a case study of bad legal reasoning, and the Supreme Court is likely to reverse the decision. The opinion shows the increasing and increasingly malign influence of a theory of legal interpretation known as originalism. Bear with me through the legal minutiae, and you’ll discover how a major conflict between the president and Congress can turn on the meaning of the word the.

The case arose after the National Labor Relations Board held that a firm called Noel Canning violated the law during collective bargaining negotiations with the Teamsters. The court ruled that the holding was invalid because the NLRB lacked a quorum of three members. Five people sit on the NLRB, but three of them had been appointed by President Obama in violation of the appointments clause of the U.S. Constitution.

Generally speaking, the Constitution provides that the president may appoint high-level officials only with the consent of the Senate. However, the recess appointments clause provides that when Congress is in recess—that is, is not meeting—the president may fill a vacancy without obtaining consent, although the appointee may remain in office only until the end of the next session, which usually means a year or two. (Normally, an appointee will serve a longer term—for example, four years, or at the president’s pleasure.)

Faculty: