Next week, the Supreme Court will hear arguments in Noel Canning, a case about the constitutionality of President Obama’s recent recess appointments. The arguments will probably feature plenty of discussion of originalism – the idea that the text of the Constitution, as it was originally understood, binds us today. But regardless of whether one agrees with originalism, the appointments are still unconstitutional.
The original meaning of the Constitution’s text forbids the appointments for two reasons. First, the Constitution says the vacancies must “happen during the recess of the Senate.” This language means the opening must start during the recess, which these vacancies did not. The idea is that the President can make a temporary appointment on his own only when has been no chance to consult the Senate. The first Attorney General, Edmond Randolph, wrote an important opinion confirming this view of the Clause. The opinion was followed by President George Washington and was unchallenged for the first four Presidencies. (It was abandoned during the Monroe Administration.)
History also indicates that “the recess of the Senate” means that the Senate is not in session. Again, this is linguistic common sense: Sometimes the Senate is in recess, sometimes the Senate is in session, but it is never in both at the same time. Yet the alleged recess during which the President made the challenged appointments occurred while the Senate was undisputedly in session. This kind of “intrasession recess” is an oxymoron.
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