Constitutional Exaptation, Political Dysfunction, and the Recess Appointments Clause

By Wexler, Jay | Boston University Law Review, May 2014 | Go to article overview

Constitutional Exaptation, Political Dysfunction, and the Recess Appointments Clause


Wexler, Jay, Boston University Law Review


The so-called Recess Appointments Clause of the Constitution provides that: "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."1 As of only a few years ago, I considered this clause so minor and quirky that I included it in a book about ten of the Constitution's "oddest" clauses, right alongside such clearly weird provisions as the Title of Nobility Clause and the Third Amendment.2 Though I recognized that the Recess Appointments Clause was probably the least odd of all the clauses in the book in the sense that it has in fact played an important role over the course of the nation's history, I still felt that it had received such little attention in the courts and among commentators that it would hardly be unreasonable to include it. After all, at the time, I could only find three law review articles that were devoted to discussing its history and meaning.3 The Recess Appointments Clause has become a lot less obscure, however, since January 2013, when the D.C. Circuit invalidated President Obama's recess appointments to the National Labor Relations Board (NLRB) in Noel Canning v. NLRB (and, by implication, his more controversial appointment of Richard Cordray to the Director of the Consumer Financial Protection Bureau).4 In the wake of the D.C. Circuit's decision in Canning, still at this writing awaiting a decision by the Supreme Court, nearly every constitutional law scholar in the United States has written an article about the clause.5

In Canning, the NLRB brought an unfair labor practice action against an employer.6 After an Administrative Law Judge (ALJ) found in favor of the NLRB, the employer appealed to a panel of three members of the Board itself, which affirmed the ALJ's decision.7 The employer then appealed to the D.C. Circuit, arguing that the NLRB had lacked authority to render a decision because President Obama had improperly appointed two of the three NLRB members that heard the case under the Recess Appointments Clause.8 The President had appointed both NLRB members during a short, intrasession break of the Senate (as opposed to the intersession break that occurs between two sessions of Congress) in which the Senate was nonetheless holding "pro forma" sessions for the purpose of blocking any recess appointments.9 Importantly, the positions in question had become vacant prior to the beginning of the recess during which they were filled.10 Relying primarily on textual arguments, the D.C. Circuit unanimously interpreted the Recess Appointments Clause narrowly, concluding that the President may only make a recess appointment during the intersession break,11 and then only to fill vacancies that have arisen during the break itself.12 Because the appointments were made during an intrasession break to positions that had become vacant prior to that break, the court held that President Obama's recess appointments were invalid. Other circuits reached similar holdings, based on similar analyses.13

Why would the lower courts have engaged in such an ultra-textual approach to interpreting the Recess Appointments Clause, as opposed to a more functional or pragmatic approach? In my view, one possibility has to do with a fairly unique and interesting feature of the Clause, namely that its original function has been rendered entirely unnecessary by developments subsequent to its ratification. Back in the early days of the republic, transportation and communication were slow and difficult, and the Senate took breaks that tended to be far longer than they are today.14 There was a significant possibility that the Senate would be unable to convene for a long period of time, thus preventing the President from filling a vacancy through the default process of Senate confirmation under the regular Appointments Clause. Moreover, vacancies were arguably more problematic in the eighteenth and nineteenth centuries, as the number of people who worked for any particular federal department was far fewer than it would become with the growth of the administrative state in the early twentieth century. …

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