Wednesday, January 08, 2014

Re-Diagramming the Recess Appointments Clause

Guest Blogger

Michael Herz

One of the three issues in the recess appointments case being argued this Monday, Noel Canning, is whether the vacancy must arise, or merely exist, during a Senate recess.  Although the parties have briefed this question extensively, they have opted not to address one plausible reading of the text that supports the “exist” reading that had prevailed for almost two centuries until Noel Canning.

The Recess Appointments Clause states: “The 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.” 

What part or parts of the Recess Appointments Clause does the phrase in bold modify?  That is to say:  What, exactly, must occur “during the Recess of the Senate”? 

The most natural reading is that (a) “during the recess” modifies “happen,” the verb that immediately precedes it, and (b) “happen” means “arise” or “occur.”  Of course, the clause has long (by most accounts, since 1823) been read not to mean that.  The “natural” reading has typically been avoided by massaging the word “happen,” which is said to mean “happen to exist” or “continue over a period of time,” rather than “occur.”  (The massaging is made somewhat easier by the fact that a “vacancy” can be an ongoing condition rather than a single-moment-in-time event.)  And indeed, that is the argument the United States is pressing in Noel Canning.  The D.C. Circuit rejected this massaging and opted for the more straightforward reading, holding that recess appointments can be made only to fill vacancies that arise “during the Recess.”

But there is a way to read the clause to cover all vacancies regardless of when they arose while still reading “happen” to mean “occur.”  It turns on item (a) above.  The question is what exactly the phrase “during the Recess of the Senate” modifies.

In a recent blog post, Will Baude (who endorses the “arise” reading and is co-author of an amicus brief urging that reading) discusses this question.  Like Noel Canning itself (see Respondent’s brief at 36, n. 26), Will insists that “during the Recess of the Senate” should be read to modify both “as may happen” (thus limiting eligible vacancies to those that occur during a Recess) and “the President shall have power to fill up” (thus limiting when the President can exercise his recess appointment authority).  Will writes:

Several readers have asked about which verbs are modified by the phrase “during the Recess.” It has generally been thought that “during” modifies “happen” — and sensibly enough, since the two words are right next to one another. Yet it also has generally been thought that the President must make the appointments during the recess, too. One way (not the only way, but the most straightforward way) for that to be true is if the “during” clause modifies both sets of verbs — “happen” as well as “have/fill.”

Some commenters on this post have suggested that this is simply not possible as a matter of text. But it seems to me that one can think of other parallel sentences where it is indeed permissible, given the context and common sense, to think that the “during” clause modifies both sets of verbs.

Some years ago, Ed Hartnett [see pp. 381-82, n. 20] made exactly this argument—that “during the Recess” must modify both “shall have Power to fill up all Vacancies” and “that may happen.”  In Ed’s view, not reading the phrase to modify “happen” was untenable textually, and not reading it to modify “fill up” was untenable functionally, since the President surely lacks the power to unilaterally fill a vacancy that arose during a recess if the Senate has since returned and is in session.

At the time, I responded [see p. 446, n. 14] that having the phrase do double duty in this way is rather awkward.  That skepticism seems to be shared by many readers of the Volokh Conspiracy. And the Solicitor General’s reply brief in Noel Canning also objects [see p. 13], though not forcefully, to having one phrase modify two separate predicates.

To be sure, as Will explains, a qualifying clause can modify multiple antecedents.  His examples are apt:  The soldiers were authorized to shoot any Germans they encountered in the trenches during the war.” “The trial judge may exclude from the courtroom any spectator who is disruptive during the trial.”  In both of those cases, it is obvious from the context that the “during” phrase modifies both parts of the sentence, since that is what makes the most sense.  One doesn’t encounter Germans in trenches before the war; nor are spectators typically “disruptive” pre-trial.  (And the converse is true, too:  Exclusion from the courtroom would be useless after the trial; and status-based execution of captured Germans would be unlawful postbellum.)

But in the case of the Recess Appointments Clause, the problem the Framers wished to address (the absence of having an officer in place to perform statutorily assigned functions) can be caused by a “vacancy” that might have commenced either before or during “the Recess” of the Senate.  This doesn’t mean that the Framers necessarily would not have wanted “during the Recess” to modify both actions.  But if that was their intent, they certainly went about articulating it in a bizarre way.  No natural English speaker would choose this formulation.  Instead, one would have written something like:  “During the Recess of the Senate the President shall have Power to fill up all Vacancies that may happen during such Recess . . . .”   The Hartnett/Baude reading, by contrast, presumes a remarkably ineffective, clumsy set of drafters.

In any event, whether merely awkward or outright incorrect, the double-duty reading is not the only way to read the clause to limit when the President can make a recess appointment.  Baude, Hartnett, and others have all posed the question as being whether “during the Recess” modifies only “Vacancies that may happen” or also “The President shall have the power to fill up.”  But there is a third alternative.  The phrase “during the Recess” could modify only “fill up” and simply not apply to “Vacancies that may happen” at all.

I would suggest that the clause can plausibly be read to mean: “The President shall have Power during the Recess of the Senate to fill up all Vacancies that may happen, by granting Commissions which shall expire at the End of their next Session.”  So put, “that may happen” is untethered from “during the Recess” and simply means, in effect, “that might occur” or “that should arise,” regardless of when.  The clause thus prescribes when vacancies may be filled and is simply silent about when they must arise.  This reading does the useful work of plainly confining the President’s power to “the Recess” – something everyone, regardless of conflicting views on what counts as a recess, agrees the Clause should or must do, even while they struggle to get it to actually say that -- and it avoids the difficulty of figuring out what “happen during the Recess” means. 

I will not rehash the arguments over “arise” versus “exist.”  Suffice it to say that (a) in my view the “exist” approach is a lot more sensible from a practical perspective and (b) it is notable that for (almost) the country’s entire history (almost) everyone with a view on the matter has concluded that the President does and should have the power to make a recess appointment in at least some cases where the Senate is unavailable to give its advise and consent regardless of when the vacancy arose. My point is just that there is a valid reading in which the Clause is not as weird as it seems.

I can’t say this would be the most obvious or apparent reading – history shows otherwise.  But it is a plausible reading for several reasons.

First, it establishes a sensible mechanism, plainly letting the President fill a vacancy regardless of when it arises but authorizing him to do so only during “a Recess.”  It does this while avoiding the peculiarities of the standard reading.

Second, the primary objection to this reading is that it seems to violate the rule of the last antecedent, skipping over that antecedent (“that may happen”) to go five words further back in the sentence.  But the rule of the last antecedent, like so many similar rules or canons, is hardly inflexible.  To pick one judicial example, familiar to legislation and administrative law scholars, consider this text: when deleterious substances in food cannot be avoided, “the Secretary shall promulgate regulations limiting the quantity therein or thereon to such extent as he finds necessary for the protection of public health, and any quantity exceeding the limits so fixed shall also be deemed to be unsafe.” 21 U.S.C. § 346 (emphasis added).  In an 8-1 decision, the Supreme Court concluded that “to such extent” might modify “limiting the quantity therein or thereon” (as Justice Stevens and the rule of the last antecedent would have it).  But, alternatively, it might modify “shall promulgate regulations.”  Both readings were equally plausible; unable to choose between them, the Court went with the agency under Chevron, and allowed a reading in which “to such extent” modified “shall promulgate regulations,” rather than modifying the closest antecedent.  My reading of the Recess Appointments Clause reaches just as far back in the sentence.

Moreover, any violation of the principle of the last antecedent here is hardly egregious.  Antecedents are in the eye of the beholder.  A standard formulation is that the last antecedent is “the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence.”  (This is a somewhat circular standard, since “the meaning of the sentence” is exactly what we are trying to figure out.)  “Happen” is the nearest word, and “Vacancies that may happen” the nearest phrase, that could be intelligibly modified by “during the Recess.”  But “shall have Power to fill up all Vacancies that may happen” can also be read as a single phrase; and so read, it is immediately antecedent to “during the Recess.”  The President can fill up all vacancies that may happen.  When can he do so?  During the recess.

Third, consider this very modest clue.  In Federalist 67, Hamilton’s phrasing tracks this reading.  He states that the clause “is evidently intended to authorize the President, singly, to make temporary appointments ‘during the recess of the Senate, by granting commissions which shall expire at the end of their next session.’”  He points out that “the time within which the power is to operate” is “during the recess of the Senate.”  When the vacancy arises is just not on his mind at all. 

There are counterarguments.  For example, in other provisions, the drafters seem to have been careful about placing timing clauses next to the term they modify (for example: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . .”)  Moreover, if this was the drafters’ meaning it would have been clearer to have just begun the sentence with “during the Recess of the Senate.”  Finally, on this reading “that may happen” is not doing much work; the sentence still would be intelligible without those words.  (Though in ordinary and legal usage, such a formulation is not uncommon.  One could imagine saying either “FEMA has authority to respond to all natural disasters” or “FEMA has authority to respond to all natural disasters that may occur.”  “All . . . that may happen” is in essence one phrase, and the surplusage of “that may happen” is parasitic on, or part and parcel of, the surplusage of “all.”)

So, I don’t think this reading is a slam dunk.  I don’t even think it’s the most natural reading of the clause.  But it is a lexically and syntactically permissible reading, it is the most sensible reading of the three in its operation, and it solves a host of problems.

Michael Herz is the Arthur Kaplan Professor of Law at the Benjamin Cardozo School of Law.  You can reach him by email at herz at

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