Noel Canning, Federalism, and Constitutional Structure

June 27th, 2014

While the surface of Noel Canning focused on what terms like “happen” and “the recess” mean, at its core, this was a serious separation of powers case. Justice Breyer and Justice Scalia, as is often the case, were sparring partners on this divide. Though the case was ostensibly 9-0, Justice Breyer’s opinion for himself, and Justices Kennedy, Ginsburg, Sotomayor, and Kagan, and the concurring opinion by Justices Scalia, on behalf of the Chief and Justices Thomas and Alito, were world apart.

Justice Scalia states well, at the end of his opinion, the importance of these separation of powers opinions, and why he faults the majority for ducking the issue.

The real tragedy of today’s decision is not simply the abolition of the Constitution’s limits on the recess­ appointment power and the substitution of a novel frame­ work invented by this Court. It is the damage done to our separation-of-powers jurisprudence more generally. It is not every day that we encounter a proper case or contro­versy requiring interpretation of the Constitution’s struc­tural provisions. Most of the time, the interpretation of those provisions is left to the political branches—which, in deciding how much respect to afford the constitutional text, often take their cues from this Court. We should therefore take every opportunity to affirm the primacy of the Constitution’s enduring principles over the politics of the moment. Our failure to do so today will resonate well beyond the particular dispute at hand. Sad, but true: The Court’s embrace of the adverse-possession theory of execu­ tive power (a characterization the majority resists but does not refute) will be cited in diverse contexts, including those presently unimagined, and will have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers.

You never know what the next constitutional crisis will be. It is impossible to predict how this decision will impact the next separation of powers battle. Shirking that responsibility, as Scalia explains, paves the way towards future aggrandizement of power.

Scalia alludes to this with his hypothetical OLC memo, of how some administration official will try to find a way around the court’s opinion.

Or, to put the question as it will present itself to lawyers in the Executive Branch: Can the President make an appointment during a 10-day break simply to overcome “political opposition in the Senate” despite the absence of any “national catastrophe,” even though it “go[es] without saying” that he cannot do so during a 9-day break? Who knows? The majority does not say, and neither does the Constitution.4Tr. of Oral Arg. 21.)

Unsurprisingly, Justice Breyer takes a very functionalist approach to the separation of powers. No wonder he cites Frankfurter in Youngstown. What matters most is practice–even if it is in tension with the text of the Constitution.

We recognize, of course, that the separation of powers can serve to safeguard individual liberty, Clinton v. City of New York, 524 U. S. 417, 449–450 (1998) (KENNEDY, J., concurring), and that it is the “duty of the judicial depart- ment”—in a separation-of-powers case as in any other—“to say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803). But it is equally true that the longstanding “practice of the government,” McCulloch, supra, at 401, can inform our determination of “what the law is,” Mar- bury, supra, at 177.

That principle is neither new nor controversial. As James Madison wrote, it “was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms & phrases necessarily used in such a charter . . . and that it might require a regular course of practice to liquidate & settle the meaning of some of them.” Letter to Spencer Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908). And our cases have continually confirmed Madison’s view. E.g., Mistretta v. United States, 488 U. S. 361, 401 (1989); Dames & Moore v. Regan, 453 U. S. 654, 686 (1981); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 610–611 (1952) (Frankfurter, J., concurring); The Pocket Veto Case, supra, at 689–690; Ex parte Gross- man, 267 U. S. 87, 118–119 (1925); United States v. Mid- west Oil Co., 236 U. S. 459, 472–474 (1915); McPherson v. Blacker, 146 U. S. 1, 27 (1892); McCulloch, supra; Stuart v. Laird, 1 Cranch 299 (1803).

These precedents show that this Court has treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era. See Mistretta, supra, 400–401 (“While these [practices] spawned spirited discussion and frequent criticism, . . . ‘traditional ways of conducting government . . . give mean­ ing’ to the Constitution” (quoting Youngstown, supra, at 610) (Frankfurter, J., concurring)); Regan, supra, at 684 (“[E]ven if the pre-1952 [practice] should be disregarded, congressional acquiescence in [a practice] since that time supports the President’s power to act here”); The Pocket Veto Case, supra, at 689–690 (postfounding practice is entitled to “great weight”); Grossman, supra, at 118–119 (postfounding practice “strongly sustains” a “construction” of the Constitution).

There is a great deal of history to consider here. Presi­ dents have made recess appointments since the beginning of the Republic. Their frequency suggests that the Senateand President have recognized that recess appointments can be both necessary and appropriate in certain circum­ stances. We have not previously interpreted the Clause, and, when doing so for the first time in more than 200 years, we must hesitate to upset the compromises and working arrangements that the elected branches of Gov­ ernment themselves have reached.

The Senate as a body has not countered this practice for nearly three­ quarters of a century, perhaps longer. See A. Amar, The Unwritten Constitution 576–577, n. 16 (2012) (for nearly 200 years “the overwhelming mass of actual practice” supports the President’s interpretation); Mistretta v. United States, 488 U. S. 361, 401 (1989) (a “200–year tradition” can “ ‘give meaning’ to the Constitution” (quot­ing Youngstown, 343 U. S., at 610 (Frankfurter, J., con- curring))). The tradition is long enough to entitle the practice “to great regard in determining the true construc- tion” of the constitutional provision. The Pocket Veto Case, 279 U. S., at 690. And we are reluctant to upset this traditional practice where doing so would seriously shrink the authority that Presidents have believed existed and have exercised for so long. In light of some linguistic ambiguity, the basic purpose of the Clause, and the historical practice we have de- scribed, we conclude that the phrase “all vacancies” in- cludes vacancies that come into existence while the Senate is in session.

Justice Scalia counters, stressing the significance of the separation of powers, as a means to protect liberty (with an unusual number of citations to Justice Kennedy opinions).

First, the Constitution’s core, government-structuring provisions are no less critical to preserving liberty than are the later adopted provisions of the Bill of Rights. Indeed, “[s]o convinced were the Framers that liberty of the person inheres in structure that at first they did not consider a Bill of Rights necessary.” Clinton v. City of New York, 524 U. S. 417, 450 (1998) (KENNEDY, J., concur­ ring). Those structural provisions reflect the founding generation’s deep conviction that “checks and balances were the foundation of a structure of government that would protect liberty.” Bowsher v. Synar, 478 U. S. 714, 722 (1986). It is for that reason that “the claims of indi­ viduals—not of Government departments—have been the principal source of judicial decisions concerning separation of powers and checks and balances.” Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 10); see, e.g., Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477 (2010); Clinton, supra; Plaut v. Spendthrift Farm, Inc., 514 U. S. 211 (1995); Bowsher, supra; INS v. Chadha, 462 U. S. 919 (1983); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50 (1982). Those decisions all rest on the bedrock princi­ ple that “the constitutional structure of our Government” is designed first and foremost not to look after the inter­ ests of the respective branches, but to “protec[t] individual liberty.” Bond, supra, at ___ (slip op., at 11).

More precisely, the Executive of both parties lack the collection action problems the Congress has, and will seize on the failure to enforce the structural barriers as an opportunity to aggrandize power.

Moreover, the majority’s insistence that the Senate gainsay an executive practice “as a body” in order to pre­ vent the Executive from acquiring power by adverse pos­ session, ante, at 14, will systematically favor the expansion of executive power at the expense of Congress. In any con­ troversy between the political branches over a separation­ of-powers question, staking out a position and defending it over time is far easier for the Executive Branch than for the Legislative Branch. See generally Bradley and Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411, 439–447 (2012). All Presidents have a high interest in expanding the powers of their office, since the more power the President can wield, the more effectively he can implement his political agenda; whereas individual Senators may have little interest in opposing Presidential encroachment on legislative prerog­ atives, especially when the encroacher is a President who is the leader of their own party. (The majority would not be able to point to a lack of “formal action” by the Senate “as a body” challenging intra-session recess appointments, ante, at 15–16, had the appointing President’s party in the Senate not blocked such action on multiple occasions.) And when the President wants to assert a power and establish a precedent, he faces neither the collective-action problems nor the procedural inertia inherent in the legis­ lative process. The majority’s methodology thus all but guarantees the continuing aggrandizement of the Execu­ tive Branch.

In other words, the Senate cannot be trusted to safeguard their own power:

The majority insists that “character and politics” will ordinarily prevent the President from circumventing the Senate, and that the Senate has “political resources” to respond to attempts at circumven­ tion. Ante, at 25. Neither character nor politics prevented Theodore Roosevelt from proclaiming a fictitious recess lasting an “infinitesimal fraction of a second.” In any event, the Constitution does not entrust the Senate’s role in the appointments process to the vagaries of charac­ ter and politics. See, e.g., Freytag v. Commissioner, 501 U. S. 868, 879– 880 (1991).

For these inconveniences are not bugs, but “calculated features” of the constitution.

Congress must either anticipate such eventualities or be prepared to be haled back into session. The troublesome need to do so is not a bug to be fixed by this Court, but a calculated feature of the consti­ tutional framework. As we have recognized, while the Constitution’s government-structuring provisions can seem “clumsy” and “inefficient,” they reflect “hard choices . . . consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” Chadha, supra, at 959.

Further, the two disagree over the role of acquiescence. Scalia emphatically rejects the “adverse possession” vision of constitutional law. In fact, when the other branches routinely violate the separation of powers, with “enthusiasm,” that gives the Court a greater license to “sharpen” their review.

This Court does not defer to the other branches’ resolution of such controversies; as JUSTICE KENNEDY has previously written, our role is in no way “lessened” because it might be said that “the two political branches are adjusting their own powers between themselves.” Clinton, supra, at 449 (concurring opinion). Since the separation of powers exists for the protection of individual liberty, its vitality “does not depend” on “whether ‘the encroached-upon branch approves the encroachment.’ ” Free Enterprise Fund, supra, at 497 (quoting New York v. United States, 505 U. S. 144, 182 (1992)); see also Freytag v. Commissioner, 501 U. S. 868, 879–880 (1991); Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252, 276–277 (1991). Rather, polic­ ing the “enduring structure” of constitutional government when the political branches fail to do so is “one of the most vital functions of this Court.” Public Citizen v. Depart­ ment of Justice, 491 U. S. 440, 468 (1989) (KENNEDY, J., concurring in judgment).

Our decision in Chadha illustrates that principle. There, we held that a statutory provision authorizing one House of Congress to cancel an executive action taken pursuant to statutory authority—a so-called “legislative veto”—exceeded the bounds of Congress’s authority under the Constitution. 462 U. S., at 957–959. We did not hesi­ tate to hold the legislative veto unconstitutional even though Congress had enacted, and the President had signed, nearly 300 similar provisions over the course of 50 years. Id., at 944–945. Just the opposite: We said the other branches’ enthusiasm for the legislative veto “sharp­ ened rather than blunted” our review. Id., at 944. Like­ wise, when the charge is made that a practice “enhances the President’s powers beyond” what the Constitution permits, “[i]t is no answer . . . to say that Congress sur­ rendered its authority by its own hand.” Clinton, 524 U. S., at 451 (KENNEDY, J., concurring). “[O]ne Congress cannot yield up its own powers, much less those of other Congresses to follow. Abdication of responsibility is not part of the constitutional design.” Id., at 452 (citations omitted).

In such cases, Scalia insists, it is up to the Court to decide whether there is a separation of powers–not the other branches attempting to aggrandize their powers. This is a very Boerne v. Flores-style analysis.

Of course, where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpreta­ tion of an ambiguous constitutional provision. See, e.g., Alden v. Maine, 527 U. S. 706, 743–744 (1999); Bowsher, supra, at 723–724; Myers v. United States, 272 U. S. 52, 174–175 (1926); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 610 (1952) (Frankfurter, J., concur­ ring) (arguing that “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned” should inform interpretation of the “Executive Power” vested in the President); Rutan v. Republican Party of Ill., 497 U. S. 62, 95, and n. 1 (1990) (SCALIA, J., dissenting). But “‘[p]ast practice does not, by itself, create power.’ ” Medellín v. Texas, 552 U. S. 491, 532 (2008) (quoting Dames & Moore v. Regan, 453 U. S. 654, 686 (1981)). That is a necessary corollary of the principle that the political branches cannot by agreement alter the constitutional structure. Plainly, then, a self­ aggrandizing practice adopted by one branch well after the founding, often challenged, and never before blessed by this Court—in other words, the sort of practice on which the majority relies in this case—does not relieve us of our duty to interpret the Constitution in light of its text, struc­ ture, and original understanding. …

I would hold that “the Recess” is the gap between sessions and that the appointments at issue here are invalid because they undisputedly were made during the Senate’s session. The Court’s contrary conclu­ sion—that “the Recess” includes “breaks in the midst of a session,” ante, at 9—is inconsistent with the Constitution’s text and structure, and it requires judicial fabrication of vague, unadministrable limits on the recess-appointment power (thus defined) that overstep the judicial role. And although the majority relies heavily on “historical prac­ tice,” no practice worthy of our deference supports the majority’s conclusion on this issue.

Another interesting aspect of Breyer’s opinion, was his attempt to see whether this practice actually bothered the Senate enough to make them voice opposition.

We recognize that the Senate cannot easily register opposition as a body to every governmental action that many, perhaps most, Senators oppose. But the Senate has not been silent or passive regarding the meaning of the Clause: A Senate Committee did register opposition to President Theodore Roosevelt’s use of the Clause, and the Senate as a whole has legislated in an effort to discourage certain kinds of recess appointments. And yet we are not aware of any formal action it has taken to call into ques­ tion the broad and functional definition of “recess” first set out in the 1905 Senate Report and followed by the Executive Branch since at least 1921. Nor has JUSTICE SCALIA identified any. All the while, the President has made countless recess appointments during intra-session recesses. The upshot is that restricting the Clause to inter-session recesses would frustrate its purpose. It would make the President’s recess-appointment power dependent on a formalistic distinction of Senate procedure. Moreover, the President has consistently and frequently interpreted the word “recess” to apply to intra-session recesses, and has acted on that interpretation. The Senate as a body has done nothing to deny the validity of this practice for at least three-quarters of a century. And three-quarters of a century of settled practice is long enough to entitle a practice to “great weight in a proper interpretation” of the constitutional provision. The Pocket Veto Case, 279 U. S., at 689.

Scalia heavily discounts this history, and methodology, with a gratuitous shot at Janevsille, Wisconsin:

The Solicitor General identifies only 10 recess appointments made between 1823 and 1863 that filled pre-recess vacancies—about one every four years. App. to Brief for Petitioner 68a–71a. That is hardly an impressive number, and most of the appointments were to minor offices (like Deputy Postmaster for Janesville, Wisconsin, id., at 70a) unlikely to have gotten the Senate’s attention. But the Senate did notice when, in 1862, President Lin­ coln recess-appointed David Davis to fill a seat on this Court that had become vacant before the recess, id., at 71a—and it reacted with vigor.

In the end, we return to a debate that was the essence of NFIB v. Sebelius. Does the Constitution preserve liberty by limiting government, or ensuring that government can operate efficiently to protect people. Is it liberty, or security?

For to Breyer, what promotes liberty is security, through the means of a “vigour[ous]” government!

In fact, Alexander Hamilton observed in the very first Feder­alist Paper that “the vigour of government is essential to the security of liberty.” The Federalist No. 1, at 5. And the Framers included the Recess Appointments Clause to preserve the “vigour of government” at times when an important organ of Government, the United States Senate, is in recess. JUSTICE SCALIA’s interpretation of the Clause would defeat the power of the Clause to achieve that objective. The foregoing discussion should refute JUSTICE SCALIA’s claim that we have “embrace[d]” an “adverse-possession theory of executive power.” Post, at 48. Instead, as in all cases, we interpret the Constitution in light of its text, purposes, and “our whole experience” as a Nation. Missouri v. Holland, 252 U. S. 416, 433 (1920). And we look to the actual practice of Government to inform our interpretation.

The citation to Missouri v. Holland, which Scalia would have flat-out overruled in Bond, seems deliberate. Breyer’s parting salvo is harsh:

JUSTICE SCALIA would render illegitimate thousands of recess appointments reaching all the way back to the founding era. More than that: Calling the Clause an “anachronism,” he would basically read it out of the Con­ stitution. Post, at 12. He performs this act of judicial excision in the name of liberty. We fail to see how excising the Recess Appointments Clause preserves freedom. 

Scalia returns fire, offering a very different vision of what promotes liberty.

The majority justifies those atextual results on an adverse-possession theory of executive authority: Presidents have long claimed the powers in question, and the Senate has not disputed those claims with sufficient vigor, so the Court should not “upset the compromises and working arrange­ ments that the elected branches of Government them­ selves have reached.” Ante, at 9.

The Court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presi­ dents against future Senates. To reach that result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best. The majority’s insistence on deferring to the Executive’s untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a diminution of this Court’s role in controversies involving the separation of powers and the structure of government.

Scalia makes the point elsewhere that “convenience and efficiency” are not goals of our governmental structure–at times, these seem to be the things that Breyer most wants to promote.

In doing so, it demonstrates the folly of interpreting constitutional provisions designed to estab­ lish “a structure of government that would protect liberty,” Bowsher, 478 U. S., at 722, on the narrow-minded as­ sumption that their only purpose is to make the govern­ ment run as efficiently as possible. “Convenience and efficiency,” we have repeatedly recognized, “are not the primary objectives” of our constitutional framework. Free Enterprise Fund, 561 U. S., at 499 (internal quotation marks omitted).

Specifically, the recess appointment power is not a “safety valve” for Senatorial “intransigence.”

The majority also says that “political opposition in the Senate would not qualify as an unusual circumstance.” Ibid. So if the Senate should refuse to confirm a nominee whom the President considers highly qualified; or even if it should refuse to confirm any nominee for an office, thinking the office better left vacant for the time being; the President’s power would not be triggered during a 4-to-9-day break, no matter how “urgent” the President’s perceived need for the officer’s assistance. (The majority protests that this “should go without saying—except that JUSTICE SCALIA compels us to say it,” ibid., seemingly forgetting that the appointments at issue in this very case were justified on those grounds and that the Solicitor General has asked us to view the recess-appointment power as a “safety valve” against Senatorial “intransigence.”

While this case was ostensibly 9-0, it was far from unanimous. In any event, am relieved that all 9 Justices rejected the President’s ridiculous theory that a three day break is a “recess.”