The transcript of the oral arguments in the recess appointment case (NLRB v. Canning) I wrote about yesterday is now available on the Supreme Court Web site. It’s quite entertaining. No, really! For example:
1. Solicitor General (SG) Donald Verrilli began not with constitutional principle but with a variant of the practicality argument I highlighted yesterday. That is, he stressed the “repudiation” of the “legitimacy of thousands of appointments going back to George Washington.” But then he downplayed the effects — having managed to speak for about 15 seconds before he was interrupted, Verrilli was asked whether the acts of those past appointees would be rendered invalid. Verrilli weaved about but said “no,” leaving Justice Sonia Sotomayor to ask the obvious question: “Why not?”
One answer is, it appears, the “de facto officer doctrine.” At least this was the route suggested by Justice Antonin Scalia as a way of brandishing his preferred outcome and eating it, too. After all, for Scalia, the “clear text” of the Constitution — i.e., a de jure application — must trump the way it has been interpreted and utilized (even if for centuries) — i.e., a de facto application. Now, the de facto officer doctrine is real, and certainly useful — but it is also, as argued more than 50 years ago in the Columbia Law Review, “a doctrine of convenience,” a “results-oriented” approach used when to do otherwise would be just too much of a pain and discarded when that is instead in the court’s interest. Scalia gets an extra point, though, because one must admire the rhetorical rapier with which he punctured the solicitor general’s train of thought.
2. And indeed, Scalia asked a good question: “If you ignore the Constitution often enough, its meaning changes?” However leading in its immediate context (“if you ignore what I think the Constitution says often enough, aren’t I still right?”) the broader principle kept coming back into the argument.
Framed more broadly, the answer is not self-evident, especially when there is not the “clear text” Scalia presupposed — and doing something different, over and over again, in a relatively uncontested way, suggests that the meaning of the text is not so clear. To quote Justice Oliver Wendell Holmes, instead, generally “a page of history is worth a volume of logic.” Or, as the court itself held in the 1915 Midwest Oil case, “government is a practical affair, intended for practical men. … [O]fficers, lawmakers and citizens naturally adjust themselves to any long-continued action of the Executive Department on the presumption that unauthorized acts would not have been allowed to be so often repeated as to crystalize into a regular practice. That presumption is not reasoning in a circle, but the basis of a wise and quieting rule that, in determining the meaning of a statute or the existence of a power, weight shall be given to the usage itself, even when the validity of the practice is the subject of investigation.”
3. Looking at practice, though, Justice Elena Kagan noted that when it came to the pro forma session question, at least, “the history is entirely on the Senate’s side, not on your side” and later said, more or less flatly, that “the question of how to define a recess really does belong to the Senate.” Having led Verrilli down a line that wound up with the solicitor general endorsing the recess appointment power as a framer-endorsed “safety valve” to evade Senate intransigence (a claim for which there is little evidence), Justice Alito noted sternly that this was a “very, very aggressive argument in favor of executive power.” Indeed, the solicitor general claimed simultaneously that (1) the Senate “could decide not to take a recess” and (2) “the president has got to make the determination of when there’s a recess.” Not a single justice seemed sympathetic to this point.
4. The case seemed more finely balanced in its other areas — the history and the grammar of why intra-session recesses should count, and the question of whether it matters when a vacancy actually occurs. Verrilli noted that the language of the clause in question has been considered “ambiguous” since the Washington administration and in Jefferson’s own manual of parliamentary procedure. Scalia pointed out, correctly, that “it’s been assumed to be ambiguous by self-interested presidents”; and Justice Stephen Breyer seemed surprisingly sympathetic to the grammatical points of the timing question. But see point (2) above on logic and history, and Federalist #51 on the indispensability of self-interest in a system of checks and balances.
5. It’s worth noting, as Canning attorney Noel Francisco did, that moving forward on the D.C. Circuit’s ground there is no issue — because if vacancies must both occur and be filled during the same inter-session recess, there will rarely be any recess appointments. Miguel Estrada (yes, that Miguel Estrada), representing the Senate Republicans, brushed off problems both of practice and power: “The only thing that will happen is that the president, heaven help us, will be forced to comply with the advice and consent that the Appointments Clause actually calls for.” Still, there were some efforts by the Justices to get the SG say how long a Senate absence had to be for it to count as a recess (three days, he seemed to say), which might suggest some sympathy towards maintaining the possibility of intra-session recess. Actually, a tangible definition here might be affirmatively useful, moving forward — but the court will not write one (Breyer sighed that “this is basically a matter of politics for other branches basically.”) And probably rightly so, since it’s really a matter for the Senate and the president to figure out …
6. … As they more or less had done, until Obama pushed the envelope ’til it broke. Verrilli, in one of the stronger sections of his arguments, noted that “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.” That was true — until January 2012.