an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The constitutional text looms large in the recess appointments case, NLRB v. Noel Canning.The Recess Appointments Clause provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”The Supreme Court is considering (among other things) whether, in light of this Clause, the President is limited to making recess appointments during “inter-session” Senate recesses, and whether the positions that are being filled must have become vacant during the recess.
At one level, the case presents conventional debates about the meaning of specific words in the text of the Constitution, including the word “the.”At a deeper, more theoretically interesting level, the case highlights uncertainties about the role that such text should play in constitutional analysis when it appears to be inconsistent with longstanding practice or other extra-textual considerations.Although the parties dispute the precise nature and duration of the historical practice, it is undisputed that presidents made intra-session appointments as far back as Andrew Johnson, and that such appointments have been common for decades. Presidents throughout American history have also used recess appointments to fill positions that became vacant prior to a recess.
If the constitutional text is perceived to be unclear, there is substantial precedential support for the idea that historical practice might provide a “gloss” on its meaning, especially with respect to separation of powers issues.As Justice Frankfurter famously observed in his concurrence in the Youngstown steel seizure case, “It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them.”But what if the text is perceived to be clear?Is practice simply irrelevant in that situation?That is one of the questions we puzzle over in our draft article, Constructed Constraint and the Constitutional Text.
During the oral argument in Noel Canning, Justice Scalia repeatedly posed the following question to the Solicitor General: “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?”The Solicitor General’s primary response was to fight the hypothetical.He argued that the text was linguistically unclear, that historical practice both confirms its lack of clarity and “gives meaning to the Constitution,” and that it would be unlikely for longstanding practice to develop in a way that was contrary to clear text. But Scalia pressed, and the Solicitor General alternatively maintained that “a practice going back to the founding of the Republic . . . should govern.”Justice Alito then posed the same question for opposing counsel, and not surprisingly, he gave the opposite answer.
We think these exchanges miss a fundamental and often overlooked point: “clear text” and “longstanding practice” are not fully separate categories.Whether constitutional text is perceived to be clear or unclear, we maintain, is partially constructed by a variety of considerations, including customary practice.Here, we use the idea of “constitutional construction” in a way that is different from the way it is being used in some recent originalist scholarship.Instead of distinguishing construction from interpretation, we view construction in the older constitutional sense of being part of interpretation.Specifically, the perceived clarity of the constitutional text is not just a function of linguistic conventions, such as the semantic meaning of “the” and “recess,” but also of a mix of purposive, structural, and consequentialist considerations, as well as historical practice.
Interpreters often construct textual clarity, even if they do not realize that they are doing so.For example, most interpreters believe that the First Amendment is clearly not limited to Congress.If that is so, it is not because of the semantic meaning of “Congress,” which the Constitution itself defines in Article I, Section 1.Likewise, historical practice has made it far less likely for interpreters to draw “clear” negative implications for presidential authority from the Constitution’s assignment to Congress of the power to declare war and its requirement of supermajority Senate consent to treaties.And it might seem, in light of the Constitution’s placement of the Habeas Suspension Clause in Article I, that only Congress has the authority to invoke it, but the conclusion becomes less clear in a situation like the one that President Lincoln faced at the outset of the Civil War, when Congress was out of session and the capital itself was threatened by the Confederacy.
What about the Recess Appointments Clause?Noel Canning argues that clear text trumps historical practice.The federal government primarily argues that historical practice trumps unclear text.A third possibility, which neither side seems to register, is that the perception of clarity is not a fully independent variable and is affected to some extent by the practice.In light of the practice, perhaps the phrase “during the Recess of the Senate” could be read as modifying when the President may make the appointment, and not when the vacancy must occur.And perhaps “the Recess” could be read as referring to “when the Senate is in recess,” not an event that can occur only once per Senate session. (Dred Scott illustrates how a narrow interpretation of the word “the” can be problematic: in holding that Congress was powerless to prohibit slavery in American territories that were acquired after ratification of the Constitution, Chief Justice Taney reasoned that Congress’s power in Article IV to make rules and regulations for “the territory . . . belonging to the United States” “does not speak of any territory, nor of territories, but uses language which, according to its legitimate meaning, points to a particular thing.”)Alternatively, perhaps the Recess Appointments Clause should not be viewed as setting forth the exclusive conditions under which presidents may make recess appointments (just like, say, the Treaty Clause is not viewed as setting forth the exclusive grounds for presidential conclusion of international agreements).
We do not necessarily endorse any of the above conclusions.Our article is a theory paper; it is not about how the recess appointments case (or any other case) should be decided. Moreover, sometimes traditionally textual considerations (such as linguistic conventions) will trump other considerations, including practice.In any event, practice is not the only relevant extra-textual consideration for the Recess Appointments Clause, and the consequentialist implications of particular readings of the Clause are complex in light of changes since the Founding in Senate practice and the size of the executive branch. The point about practice is simply that it makes it more difficult for Noel Canning to lay unquestionable claim to the clear text of the Clause:whether its reading or the Solicitor General’s is more faithful to the “clear text” is as much a conclusion as it is a premise of the interpretive argument.Whatever the right outcome in Noel Canning, understanding that the perceived clarity of the constitutional text is partially constructed by historical practice allows for a more nuanced and descriptively accurate assessment of American constitutional practice.