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Another Originalism Problem


John Elwood, with respect to the trend toward more recess appointments by the president, and especially the recent intrasession appointment of Donald Berwick:

It is certainly not without controversy, however; Attorney General Daugherty said in dicta in one opinion that an adjournment for “5 or even 10 days” would be too brief to constitute a recess for purposes of using the Recess Appointments Clause.  But the Executive Branch (unsurprisingly) has been walking away from the Daugherty opinion  pretty much ever since.  And that is to say nothing about the considerable academic writing on the subject, much of which has been critical of intrasession recess appointments.  See, e.g., Michael Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487, 1487, 1562 (2005) (stating that “one-month recesses seem too short” but acknowledging that the “prevailing interpretation” of the Recess Appointments Clause “allows the President to make recess appointments . . . during intrasession recesses of ten days and perhaps of even shorter duration”).

Let’s leave aside some of the basic conceptual problems with originalism, and assume arguendo that the Recess Appointments Clause was not intended to give the president the power to make appointments during short recesses, and was also not intended to facilitate the type and quantity of recess appointments made by recent presidents of both parties. This still leaves us with a problem, in that the Constitution is not just a series of isolated clauses, but is in many respects a structural whole. We can’t evaluate the original understanding of the Recess Appointments Clause in isolation; rather, it has to be evaluated in tandem with the Advise and Consent Clause. And if you found that the Advise and Consent Clause was not originally understood as empowering Senate minorities to block large numbers of executive branch appointments for long periods of time — which you probably would — then you haven’t really resolved the constitutional question. The better alternative is to apply the language of the Constitution in light of how politics is actually practiced in 2010, rather than how some political elites expected politics to work in 1789.

On the merits, I think this is an easy question: the appointment of Berwick is justified. Using the recess appointment in response to increasing Senate obstructionism is perfectly reasonable, and indeed is probably an equilibrium that leaves too much power to Congress (given that recess appointments are of shorter duration.) And on the broader question, while I don’t like some of the power grabs that have been made by the executive branch in recent decades (including many that the Obama administration has continued or initiated), this represents a case where expanded executive power would be a good thing. Judicial appointments are a trickier question, but presidents should be able to fill executive branch positions in a timely manner, and a norm of deference to presidential appointments in those cases is appropriate. And I don’t see any good argument for reading the Constitution to require the president to unilaterally disarm as traditional norms are redefined.

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