In Noel Canning, Justice Breyer and Justice Scalia spar over what James Madison thought about recess appointments. Breyer notes that neither Washington, Adams, nor Jefferson made such appointments. But our fourth President did:
We know that President Jefferson thought that the broad interpretation was linguistically supportable, though his actual practice is not clear. But the evidence suggests that James Madison—as familiar as anyone with the workings of the Constitutional Convention—appointed Theodore Gaillard to replace a district judge who had left office before a recess began. Hartnett, 26 Cardozo L. Rev., at 400–401. It also appears that in 1815 Madison signed a bill that created two new offices prior to a recess which he then filled later during the recess. See Act of Mar. 3, ch. 95, 3 Stat. 235; S. J. 13th Cong., 3d Sess., 689–690 (1815); 3 S. Exec. J. 19 (1828) (for Monday, Jan. 8, 1816). He also made recess appointments to “territorial” United States attorney and marshal positions, both of which had been created when the Senate was in session more than two years before. Act of Feb. 27, 1813, ch. 35, 2 Stat. 806; 3 S. Exec. J. 19. JUSTICE SCALIA refers to “written evidence of Madison’s own beliefs,” post, at 36, but in fact we have no direct evidence of what President Madison believed. We only know that he declined to make one appointment to a pre-recess vacancy after his Secretary of War advised him that he lacked the power. On the other hand, he did apparently make at least five other appointments to pre recess vacancies, as JUSTICE SCALIA does not dispute.
In response, Justice Scalia spouts that even if Madison made such appointments, they weren’t well thought out.
The majority prefers to focus on five appointments by Madison, unremarked by anyone at the time, that “the evidence suggests” filled pre-recess vacancies. Ante, at 27. Even if the majority is correct about those appointments, there is no indication that any thought was given to their constitu tionality, either within or outside the Executive Branch. A handful of appointments that appear to contravene the written opinions of Attorneys General Randolph and Lee and the written evidence of Madison’s own beliefs about what the Constitution authorized, and that lack any contemporaneous explanation, are not convincing evidence of the Constitution’s original meaning.
What would the iconic figurehead of the Federalist Society know?!
Same for Washington and Jefferson!
The same can be said of the Solicitor General’s claim to have found two recess appointments by Washington and four by Jefferson that filled pre-existing vacancies. Noel Canning disputes that claim, point ing out that Washington told the Senate the offices in question had “ ‘fallen vacant during the recess’ ” and arguing that Jefferson may have removed the incumbent officers during the recess. Brief for Respondent Noel Canning 44. Suffice it to say that if either Washington or Jeffer son had adopted the broader reading, against the written advice of Attorneys General Randolph and Lee, one would expect a good deal more evidence of that fact.