In a debate that only a ConLaw nerd can appreciate outside the context of the significance of the recess appointment issue, today’s arguments in NRLB v. Noel Canning kept circling on the question of which is more important: two centuries of practice, or the text of the Constitution. In other words, if the President has been exercising the recess power in the same fashion for two centuries, what to do when the plain text suggests that the Constitution prohibits that long-standing practice.
John Gramlich’s tweet sums it up.
Exec. practice vs. const. text. Verrilli: “I think the practice has to prevail.” Francisco: “I think that the language has to govern.”
— John Gramlich (@johngramlich) January 13, 2014
Justice Scalia posed the question.
JUSTICE SCALIA: What do you do when there is a practice that — that flatly contradicts a clear text of the Constitution? Which — which of the two prevails?
GENERAL VERRILLI: Now, I think the practice has to prevail, Your Honor.
Verrilli continued to evade Justice Scalia’s question about text and practice, but it seems clear he focuses on the practice.
GENERAL VERRILLI: No, I am — I am answering. I think I already answered it once, Justice Scalia, but I’ll answer it again. The answer is I think, given this — a practice going back to the founding of the Republic, the practice should be — the practice should govern, but we don’t have that here. This provision has been subject to contention as to its meaning since the first days of the Republic.
Update: This colloquy between SG and Justice Kagan is also fascinating. The SG speaks to a “equilibrium that has emerged” over the last two centuries, and urges the Court to maintain the “status quo”–that is, the practice.
GENERAL VERRILLI: So, what I would say about this, and also to your point, Mr. Chief Justice, is we have, I would submit, a stable equilibrium that has emerged over the course of this country’s history between the two branches. After all, what we are advocating for here is the status quo. It is the equilibrium that has emerged since Congress — since the Senate started taking lengthy intra-session recesses, Presidents started making recess appointments during those recesses. That began in the Civil War days. It’s continued to the present. The President -
Kagan replies that this is a “really strong argument,” but challenges how the SG accounts for that “equilibrium.”
JUSTICE KAGAN: General, I think that’s a really strong argument, but I have to say I’m not sure it applies consistently throughout each of the three claims that you make. Because if you are going to rely on history and on the development of an equilibrium with respect to what “happens” means, and if you are going to do that again with respect to whether intra-session recesses are included, then it seems to me you also have to look to history and the development of an equilibrium with respect to Congress’s definition of its own power to determine whether they are in recess or not. In other words, your third argument about pro forma sessions, the history is entirely on the Senate’s side, not on your side. And if we’re going to take a kind of continuing practice and the development of equilibrium seriously, you might win on questions 1 and 2 and then lose on question 3.
Update: Similar question from Justice Sotomayor:
JUSTICE SOTOMAYOR: — let’s go back to the “happenings” words — that is so unambiguous, that they knew it was unambiguous, but 200-year history, starting with President Washington, who filled two vacancies that occurred before the Senate broke, to every — almost every President thereafter has done the same. So why should we conclude that today’s understanding is the same as the understanding of the Founding Fathers? Why don’t we take their unbroken practice as giving us that definition?