Recess Appointments

Eugene Oregon over at Demagogue has the essential take on the recess appointment of AG Pryor to the Eleventh Circuit. Now, before anyone gets your underwear in a bunch, I am a moderate-liberal rather than a committed Democrat, and I'm firmly of the opinion that both parties are whining babies when it comes to confirmations and the like.

But I can't see how committed textualists can get around this:

Article II, Section 2 says

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.

The key word here is "happen." A straightforward, textualist reading of this would lead one to conclude that only those vacancies that "happen," or occur, during a Senate recess can be filled by recess appointments. Unfortunately, that has not been the historical understanding.

And don't give me any garbage about how precedent has applied the terms. The very fact that precedent may stray from the plain words of the text, and the original understanding of those words is precisely why J. Scalia, inter alia, has said time and again that precedent is less important in his decision calculus than it might otherwise be. Precedent that is dissonant with the 'mandates' of textualism and originalism cannot dictate a given result. Right?

This seems to me to be a toughie for intellectually honest, politically conservative textualists. Well? What do the two of you say?

Comments

[Eugene Oregon]

Thanks for making the point that citing precedent doesn't make recess appointments any more constitutional.

I was going to post on it, but now I don't have to.

[Plainsman]

In reality, of course, there are many people meeting that description.

Stare decisis arguments are useful for resolving textual ambiguities. You're right, though: their force decreases in proportion as it becomes clear that the status quo is wrong as a matter of text and history.

I posted my take on the recess appointments controversy over at SA. My understanding is that the slot to which Pryor was appointed *did* open up during a recess.

Instead, as I read Article II, the problem is that the President did not fill the vacancy by the end of "the next session" of the Senate after it "happened." Thus, the present recess appointment is untimely.

[Owen Courrèges]

I haven't studied this, but if you're correct, then indeed these appointments aren't kosher. The courts should strike them down.

[Plainsman]

The rub is that the courts that have weighed in on the issue have rejected the "time limit" reading of the Clause that seems so persuasive to me.

There was a divided Ninth Circuit en banc decision called Woodley in the 1980s that upheld recess judicial appointments as such. (That's OK, as I see it.) In it, the majority also rejected the "time limit" reading -- and even rejected the reading that would limit the President's recess appointment power to those vacancies that opened up during a Senate recess! Instead, as long as he *acts* during a Senate recess, the President can fill up any vacancy with a recess appointment.

Professor Solum has blogged at length about Woodley. He was clerking at the time for the 9th Cir. judge who wrote the en banc dissent. Solum is sympathetic to the dissenters' Article III argument that recess appointments of federal judges are per se unconstitutional.