Today, the D.C. Circuit issued an opinion finding that recess appointments made during the so-called “pro forma” sessions were unconstitutional. More strikingly, in contrast with nearly 200 years of executive practice, Chief Judge Sentelle, joined by Judge Henderson, held that only vacancies that arise during the recess may be filled by a recess appointment, which must happen before the recess is over. That is a striking conclusion.

Judge Sentelle’s opinion was grounded primarily in originalism arguments. Larry Solum highlighted that “Much of the reasoning is originalist, with an emphasis on the original public meaning of the text.” Sentelle wrote:

When interpreting a constitutional provision, we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution. District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008). Then, as now, the word “the” was and is a definite article. See 2 Samuel Johnson, A Dictionary of the English Language 2041 (1755) (defining “the” as an “article noting a particular thing” (emphasis added)). Unlike “a” or “an,” that definite article suggests specificity. As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said “the Recess,” what they really meant was “a recess.” This is not an insignificant distinction. In the end it makes all the difference.

What made Chief Judge Sentelle’s opinion so unique was its reliance on originalism, in spite of a long-standing interpretation (since 1823!) with the executive branch of how the recess appointment power should be interpreted.

Judge Griffith did not join this portion of the opinion, writing that though he found the Executive’s interpretation “suspect,” he was not willing to disturb it.

I agree that the Executive’s view that the President can fill vacancies that “happen to exist” during “the Recess” is suspect, but that position dates back to at least the 1820s, see Exec. Auth. To Fill Vacancies, 1 Op. Att’y Gen. 631, 633- 34 (1823), making it more venerable than the much more recent practice of intrasession recess appointments.

Indeed, as John Elwood wrote, this issue was not fully briefed before the court.

Although the first Attorney General, Edmund Randolph, read “happen” to limit the power to filling vacancies that arise during the recess of the Senate, by 1823, Attorney General William Wirt had reversed course and said it extended to vacancies that “happened to exist” during the recess.  And there it has remained ever since.  The D.C. Circuit’s conclusion conflicts with the Eleventh Circuit, the en banc Ninth Circuit, and the Second Circuit on this score.

Both these points were not the main focus of the briefing, so I could see the government seeking rehearing en banc; but if the government feels it must act quickly because of the number of NLRB decisions that are at risk, it could head directly to the Supreme Court–possibly even seeking expedited briefing so the case could be considered this Term.

I do think the panel would have benefited from extensive briefing specifically on these questions.

Judge Sentelle, however, seemed to have no qualms to reach beyond the issued briefed, and strike down a long-standing power of the President, based entirely on the original understanding of the Constitution.

For example, Sentelle did not give much credence to decade-old acts of Congress that were in tension with the original understanding of the Constitution.

Section 5503 was passed in 1966. Act of Sept. 6, 1966, Pub. L. No. 89-554, 80 Stat. 378, 475. Its similar predecessor statute was passed in 1940. Act of July 11, 1940, ch. 580, 54 Stat. 751. The enactment of statutes in 1940 and 1966 sheds no light on the original understanding of the Constitution . . . As we recalled in our analysis of the first issue, “[i]t is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” Marbury, 5 U.S. (1 Cranch) at 177. The Senate’s desires do not determine the Constitution’s meaning. . . .

Consistent with the structure of the Appointments Clause and the Recess Appointments Clause exception to it, the filling up of a vacancy that happens during a recess must be done during the same recess in which the vacancy arose. There is no reason the Framers would have permitted the President to wait until some future intersession recess to make a recess appointment, for the Senate would have been sitting in session during the intervening period and available to consider nominations. The earliest authoritative commentary on the Constitution explains that the purpose of the Recess Appointments Clause was to give the President authorization “to make temporary appointments during the recess, which should expire, when the senate should have had an opportunity to act on the subject.” Story’s Commentaries,

In Back to the Future of Originalism, I contend that at the Supreme Court, originalism seems to be employed most strongly where there are “open fields” without precedent. That, in cases where there is not much precedent, the Court is more willing to use originalism–Heller may be the best example. Because there were no precedents in the way, both the majority and dissent offered competing versions of the Second Amendment’s original understand.

Though, in cases where there is a lot of precedent (defined either as judicial precedents, or long-standing practices), the Court is less willing to use history to reverse those long-standing precedents. A good example of this phenomenon is McDonald v. Chicago, where the Court refused to reverse Slaughter-House, even though nearly everyone agrees that it incorrectly interpreted the Privileges or Immunities Clause. Justice Scalia said as much when he mocked it as the “darling of the professoriate.” Justice Sotomayor asked during oral arguments if the grand jury indictment clause would now have to be incorporated. Despite the well-agreed-upon original meaning of the Privileges or Immunities, the 140 years of precedent would not be reversed.

There was also the issue of conservatives opening up a veritable Pandora’s Box for protection of unenumerated rights, but that was likely an independently sufficient reason to leave Slaughter-House intact–but this is why I recommend importing the Washington v. Glucksberg test, that looked to whether a right was “deeply rooted in our Nation’s history and traditions.” It would have the proper respect for long-standing precedents, while bringing the original meaning of the Constitution back into the forefront.

However, Sentelle’s opinion was not by any stretch of the imagination an “open field.” In fact, this was quite cluttered–one may even say, way down deep in this political “thicket.” I wonder whether originalism was appropriate here. I also wonder whether the Supreme Court will be so inclined to use an originalist understanding to reverse two centuries of practice. Will Justice Scalia bite, or will he pull a McDonald?

I expect this case to make its way to SCOTUS ASAP. In the interim, the NLRB lacks a quorum, and all of their work for the past term is void. Same for CFPB. Sentelle’s opinion essentially crippled a federal organization. This needs to be resolved sooner rather than later.

Update: After some more thought, this case reminds me a bit of the D.C. Circuit’s per curiam opinion in American Trucking–finding a violation of the then-dormant non-delegation doctrine–which was promptly shot down by none other than Justice Scalia.