Breyer’s Greatest Triumph Over Scalia
The U.S. Supreme Court's historic decision on recess appointments has been treated as a big loss for the Barack Obama administration. That's narrow thinking, in terms of the arc of constitutional law and the system of separation of powers. A look at the actual opinions shows that the most important questions in the case produced a sharp split between Justice Antonin Scalia's approach to constitutional interpretation and that of Justice Stephen Breyer -- long Scalia's principal intellectual adversary. The outcome was an unambiguous victory for Breyer.
Scalia's approach emphasizes the original understanding of the text. He believes that constitutional provisions should be interpreted in accordance with their meaning when they were originally ratified. Breyer rejects "originalism" as an approach to interpretation. His approach emphasizes not only the text and the original understanding, but also broader constitutional purposes and national traditions as they have developed over time.
In general, Scalia insists that the meaning of the Constitution does not "evolve." Breyer believes that the framers designed a document that is not frozen in time, and that it must be interpreted to create a system that actually works.
Turn, in this light, to the Constitution's Recess Appointments Clause, which gives the president the power "to fill up all Vacancies that may happen during the Recess of the Senate." What is "the Recess"? And what, exactly, is the meaning of the words "happen during"?
Like many of his recent predecessors, President Obama argued that he could make recess appointments not only during an "intersession" recess (which separates two-year congressional sessions) but also during an "intrasession" recess (which occurs when the Senate breaks mid-session). Also, like many of his recent predecessors, Obama argued that he could make a recess appointment so long as a vacancy exists during a recess -- even if the vacancy did not actually arise during the recess.
In dissent, Scalia argued that the original understanding is decisive and Obama was wrong on both counts: "The Recess" plainly referred only to the intersession break, and "Vacancies that may happen during the Recess" referred only to vacancies that actually arise while the Senate is not in session.
But Breyer, writing for the court, concluded that the purpose of the Recess Appointments Clause "demands the broader interpretation." Its purpose is to allow the president to "ensure the continued functioning of the Federal Government when the Senate is away," and the Senate is no less away during an intrasession recess than during an intersession one.
Breyer also stressed historical practice -- what presidents have actually done. He observed that, at least since the 1860s, presidents have made intrasession appointments; that the practice has been common for at least 75 years; and that the Senate, as an institution, has issued no objection.
Breyer acknowledged that the more natural meaning of "happens" is "arises," rather than "exists." But he pointed again to the Constitution's purpose, which is "to permit the President to obtain the assistance of subordinate officers when the Senate, due to its recess, cannot confirm them." Breyer connected the broader interpretation with "vigour of government," which Alexander Hamilton claimed "is essential to the security of liberty."
He found historical support in this context as well. Many recess appointments have filled pre-existing vacancies, and here as well, the Senate as an institution has not objected, at least for the past 75 years.
It is true that the court ultimately ruled against Obama, on the highly technical and relatively narrow ground that when he made appointments to the National Labor Relations Board in 2012, the Senate was not in recess, because it had agreed to convene "pro forma" sessions. Obama argued that those sessions were a charade, because the Senate did not transact any business. The court unanimously responded that the Senate "is in session when it says it is," so long as it retains the capacity to transact Senate business.
But Breyer successfully claimed a majority for his approach to the larger questions. Clear on the stakes, Scalia found "tragedy" in the court's decision because of what he called "the damage done to our separation-of-powers jurisprudence more generally." In his view, Breyer's approach "will be cited in diverse contexts, including those presently unimagined."
That's an excellent prediction. Scalia and Breyer have been disagreeing about constitutional interpretation for 20 years. In the recess-appointments case, Breyer has had his greatest victory.
To contact the author on this story:
Cass R Sunstein at firstname.lastname@example.org
To contact the editor on this story:
Mary Duenwald at email@example.com
To continue reading this article you must be a Bloomberg Professional Service Subscriber.
If you believe that you may have received this message in error please let us know.