Justice Kagan, with an assist from Justice Breyer, hit the nail on the head in Noel Canning. Justice Breyer asked (over the course of a few pages) why this case was so important. The Solicitor General relayed a story from 1948 where the Secretary of Labor died on the eve of a lengthy congressional recess. Justice Kagan was not impressed with her successor’s answer.
JUSTICE KAGAN: General, would you agree that this clause now is not mostly used to deal with emergencies arising from congressional absence? That most modern Presidents — and I say this sort of going — going back to President Reagan, Presidents of both parties essentially have used this clause as a way to deal, not with congressional absence, but with congressional intransigence, with a Congress that simply does not want to approve appointments that the President thinks ought to be approved? You know, absence in this day and age - this is not the horse and buggy era anymore. There’s no real — there’s no such thing truly as congressional absence anymore. And that makes me wonder whether we’re dealing here with what’s essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have.
A provision that may have been designed to accommodate vacancies that arise during a lengthy break in Washington, has now been used in recent years to get around a Senate frustrating the President’s appointments (or what some may call “advice and consent.”).
Kagan’s astute comment highlights an important doctrinal point concerning originalism. Focusing on the original understanding of the text of the Constitution–what some call the semantic content–is fixed. Trying to ascertain the purpose, or intent, of those who framed the text, or even the Presidents who acted in a certain manner, is more difficult, because those intents are varied. In the debate between text (meaning) and history (practice), the Court is on much stronger footing relying on the former.
Update: Justice Breyer asks a similar, important question about the conflict between text (meaning) and history (purpose).
Look at the comparatively small practice in that area. Look at the other ways to get around the problem, and then give me another example in the Constitution where you have both language and purpose pointing one place and yet this Court because of practice has come to the opposite conclusion.
After several frustrating answers, Breyer observes that Verrilli doesn’t have an example.
Though, Verrilli’s strongest argument is that the “spirit” of the law supports this interpretation.
JUSTICE GINSBURG: You do have — you do have the one that you relied on in your brief, and this understanding goes back at least to 1823, and the — the Wirt letter, Attorney General Wirt said, on the wording — maybe on the wording, the case is not strong. But the purpose, he said, you would be honoring the letter and defying the spirit. That was the — on the question of the — when the vacancy -
GENERAL VERRILLI: And we don’t disagree with that. We think it’s just what Wirt said. It’s - does no violence to the language and is consistent with the purpose of the — of the clause. And from the - from the perspective of the purpose of the clause, the office is equally vacant, whether that vacancy arose the day before or the day after the Senate went into recess. The Senate is equally unavailable to act because they’re dispersed, whether the vacancy arose the day before or the day after. And the public’s need that the office be filled so that the laws can be faithfully executed is the same whether the vacancy arose the day before or the day after.
Update: And later in the argument, Justice Kagan asks Noel (no relation) Francisco about “chucking” practice.
The idea that we would wake up one fine morning and chuck all of that because all of a sudden we happened to read the clause, I mean, that at least needs to be defended.