The Left Against Recess-Appointment Ruling—Timothy Noah

by Ed Whelan

Unlike the attacks by Jeffrey Rosen and Jeffrey Toobin, the critique that the New Republic’s Timothy Noah offers of the D.C. Circuit’s ruling on recess appointments is within the very broad bounds of reasonable commentary, so I’ve eliminated the phrase “irrational tizzy” from the title of this post. That said, Noah’s arguments, as well as his broader claim that the D.C. Circuit “presumes to know the original meaning of the Constitution better than the Founding Fathers,” are very weak.

Noah thinks it compelling that “recess appointments made during intrasession recesses date all the way back to 1867.” (According to the D.C. Circuit, it “is not even entirely clear that the [1867] appointment was made during an intrasession recess.”) From his brief summary, the reader might be misled into thinking that the court relied first and foremost on the fact that there were no intrasession recess appointments during the first 80 years under the Constitution. In fact, the D.C. Circuit uses that practice to buttress its analysis of the text and structure of the Recess Appointments Clause and to undermine the significance of more recent practice. I don’t see what is objectionable about the court’s conclusion that the “appointment practices of Presidents more nearly contemporaneous with the adoption of the Constitution” are “more probative of original meaning than anything to be drawn from administrations of more recent vintage.”

Noah also contends that “intersession appointments for vacancies that did not occur during intersessions have arguably been with us for more than 200 years.” (Emphasis in original.) Noah explains that he says “arguably” because Washington and Jefferson “engaged in elaborate trickery to make it look as though the vacancies they filled occurred later than they actually did.” Further, he adds, the first overt use of the recess-appointment authority to fill a vacancy that pre-existed the recess came during the administration of James Monroe, who “was one of those Founding Fathers” and whose Attorney General, William Wirt, who approved the practice was nearly 15 when the Constitution was proposed.

Although Noah’s readers wouldn’t know it, the panel majority discusses the Washington and Jefferson examples (see slip op. at 33-36) and reasonably finds that the “elaborate trickery” that Noah refers to shows that they understood that the recess-appointment authority could only be used for vacancies that arose during the recess. The panel majority also points out that Edmund Randolph, the first Attorney General, in 1792 expressly opined that a vacancy does not “happen during the Recess” unless it first arises during that time. (See slip op. at 33-34.) Wirt didn’t acknowledge Randolph’s advice when he advised Monroe of his contrary view. Further, it again seems eminently reasonable for the panel majority to give more weight to the appointment practices of Washington and Jefferson (“Presidents more nearly contemporaneous with the adoption of the Constitution”) than to that of Monroe.

I don’t understand why those who are usually suspicious of the temptation for the executive branch to aggrandize power seem to have shed that suspicion. It couldn’t be, I suppose, partisan cheerleading for President Obama.

I emphasize that I hold no firm bottom-line on whether the D.C. Circuit got it right. But the Left’s critiques of it give me no reason to question it. (I will again note/disclose that while serving in the Office of Legal Counsel during the Bush 43 first term, I may well have signed publicly available opinions that, adhering to OLC precedent, embraced the expansive recess-appointment authority that the D.C. Circuit rejects.)

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