Transcending Formalism and Functionalism in Separation-of-Powers Analysis: Reframing the Appointments Power after Noel Canning

By Krotoszynski, Ronald J., Jr. | Duke Law Journal, May 2015 | Go to article overview

Transcending Formalism and Functionalism in Separation-of-Powers Analysis: Reframing the Appointments Power after Noel Canning


Krotoszynski, Ronald J., Jr., Duke Law Journal


C. Justice Scalia's Textualism Masquerading as Formalism

Justice Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, would have affirmed the D.C. Circuit's highly circumscribed reading of the Recess Appointments Clause. He would have reached this outcome by limiting the Clause to only intersession recesses (of whatever length) (118) and by permitting such appointments only for vacancies that come into existence during the Senate's intersession recess. (119) So construed, the Clause would be effectively meaningless--unless, of course, the President sought to time resignations to take effect during intersession recesses and made appointments a nanosecond after accepting the carefully timed resignation.

In Justice Scalia's view, the words "recess" and "may happen" are not ambiguous but have clear, discernable meanings. He specifically rejected the majority's textual analysis of the phrase "may happen" as "awkward and unnatural," (120) and argued that "it is clear that the Constitution authorizes the President to fill unilaterally only those vacancies that arise during a recess, not every vacancy that happens to exist during a recess." (121) Justice Scalia accused the majority of manufacturing ambiguity in the constitutional text when none existed. He wryly observed that "[w]hat the majority needs to sustain its judgment is an ambiguous text and a clear historical practice," (122) but argued that "[w]hat it has is a clear text and an at-best-ambiguous historical practice." (123) Justice Scalia charged that Justice Breyer and the majority had embraced an "adverse-possession theory of executive power," (124) an approach that runs a substantial risk of "aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers." (125)

The irony of Justice Scalia's approach is that it would not, in practice, prove any more effective at protecting the Senate's prerogative over presidential appointments than the majority's approach (which essentially gives the Senate an unfettered ability to block all recess appointments, including intersession recess appointments, by holding sessions in which it could, in theory, conduct business at least once every nine days). Unlike Justice Scalia, the majority empowers the Senate, if it wishes, to essentially nullify the recess-appointments power--but it also permits the Senate to give the President leeway to make such appointments (by not holding sessions at least every nine days), an outcome that would seem to better protect the Senate's advice-and-consent prerogative than Justice Scalia's approach. The majority's ten-day rule better safeguards against presidential self-help by applying the minimum-ten-day-recess rule to any and all recesses of the Senate--including intersession recesses.

Moreover, Justice Scalia's approach to the recess-appointments question largely ignores the imperatives of Article Il's Vesting and Take Care Clauses (and arguably the Opinions Clause as well). (126) The plain text of Article II presupposes that the President will be able to call on subordinate executive officers--"Heads of Departments." (127) Yet, if the Senate refuses to confirm any appointees to these offices, the executive power cannot really be said to be vested in the President--Congress has encroached on this authority, and essentially dissipated the executive power, by preventing the President from staffing principal offices within the executive branch. (128) Other directly vested powers, such as control over the military forces (129) and foreign relations, (130) also require subordinate officers within the executive branch who are loyal and accountable to the President.

Justice Scalia simply does not address the critical relationship of appointments to the exercise of these specifically delegated presidential powers. Thus, the dissent largely misses the forest--namely, the Framers' structural design, which requires the President to ensure enforcement of federal law and to conduct the nation's diplomatic and military affairs. …

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