cross-posted at politicsofselfishness.com
During the 112th Congress, which was in existence between January 3, 2011 and January 3, 2013, the U.S. Senate, in the face of threatened Republican filibusters, declined to confirm more than 160 nominations submitted by President Obama. Many of the persons whom the Senate declined to confirm were nominated by the President to serve on a wide variety of essential government regulatory agencies, as well as proposed appointments to various government agencies that are directly involved in the promotion of science, the arts, health and the environment. Of the 180 nominees whose names were referred to the Senate Judiciary Committee - the overwhelming majority of whom were proposed federal district and appellate judges - the Senate refused to confirm 49 of the proposed appointments, and another 4 names were withdrawn.
In response to the institutional inertia of the Senate, President Obama made three “recess” appointments to the National Labor Relations Board between January 3 and January 23, 2012, at a time when the Senate was not formally in session, so that a quorum of the five-member board could be created to adjudicate labor disputes.
In a subsequent challenge to President Obama’s action, the Court of Appeals for the District of Columbia, in Canning v. NLRB, No. 12-1115 (D.C. App.Ct., January 25, 2013), has invalidated those “recess" appointments and called into question the constitutionality of all such past appointments. The court’s sweeping decision raises of specter of a kind of Orwellian judicial “newspeak” since the panel’s holding was predicated entirely upon the narrow understanding that the three judges gave to the meaning of one noun and a verb as those two words were used in the eighteenth century. How severely that court’s decision, if not reversed, will further impair the ability of the United States government to function in the twenty-first century remains an open question.
The case arose after Noel Canning, a bottler for Pepsi Cola, challenged an order by the National Relations Labor Board. After an administrative hearing, the NLRB cited it for an unfair labor practice and directed it to honor the terms of a Collective Bargaining Agreement that it had negotiated with the Teamsters Union, but subsequently declined to implement.
In its appeal from the decision of the NLRB to the Court of Appeals, Canning argued that the Board did not properly follow applicable contract law in determining that an agreement had been reached and that, as a consequence, the finding of unfair labor practice was erroneous. The three judge panel rejected Canning’s argument and found, based upon a “sufficiency of the evidence “ standard, that the decision of the administrative judge below was correct and that the terms of the collective bargaining agreement were enforceable, as the NLRB had correctly found.
But Canning also argued for the first time in its appeal that the NLRB lacked the authority to issue any orders “ for want of a quorum, as three members of the five-member Board were never validly appointed because they took office under putative recess appointments which were made when the Senate was not in Recess.” Canning, at 3. Further, Canning asserted that the “vacancies the three members purportedly filled did not ‘happen during the Recess of the Senate,’ as required for recess appointments by the Constitution. U.S. Const. Art II, §2, cl.3." Canning, at 3, 4.
In an unabashed display of judicial activism, the three judges on the panel (all of whom were appointed by Republican Presidents and have established track-record as right-wing jurists), David Sennelle, Karen Henderson and Thomas Griffith, agreed with Canning. The judges denied that the three recess appointments that President Obama made to National Labor Relations Board were valid because they found that the Senate was not actually in recess, despite the fact that, during the interval between January 3, 2012 and January 23, 2012, almost all of the Senators were absent from Washington, and only pro forma sessions were convened by one Senator every three business days.
In its decision, the Court of Appeals noted that “...there is a serious argument to be made against our having jurisdiction over the constitutional issues. Section 10(e) of the NLRA, governing judicial review of the Board’s judgments and petitions for enforcement, provides: ‘No objection that has not been urged before the Board ... shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.’ 29 U.S.C. § 160(e). The record reflects no attempt by petitioner to raise the threshold issues related to the recess appointments before the Board. Our first question, then, is whether this failure to urge the objection before the Board comes within the exception for ‘extraordinary circumstances.’ Canning, at 10.
Not unexpectedly, the three judge panel answered that question in the affirmative, given their well-known personal penchants for result-oriented adjudication: “We hold that it does,” notwithstanding the fact that“We acknowledge that no governing precedent directly addresses this question.” Canning, at 10.
Equally disturbing, the three judge panel expressly rejected contrary decisions reached by other federal courts, including Evans v. Stephens, 387 F. 3d 1220 (11th Cir.,2004). Those earlier decisions affirmed the constitutional validity of presidential recess appointments.
The appeals court also chose to ignore a long-standing principle that counseled for judicial restraint when ruling upon constitutional issues: “The Judicial Branch is the controlling interpreter of how the Constitution applies. But the President, in his capacity as chief executive of this country, is also sworn to uphold the Constitution. And when the President is acting under the color of express authority of the United States Constitution, we start with a presumption that his acts are constitutional. See United States v. Allocco, 305 F.2d 704, 713 (2d Cir.1962) (Recess Appointments Clause case); see also U.S. v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 3105, 41 L.Ed.2d 1039 (1974) (observing ‘In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others.’). To be sure, the presumption is a rebuttable one; but the burden is on the challengers to overcome it with their arguments and to persuade us to the contrary. Just to show that plausible interpretations of the pertinent constitutional clause exist other than that advanced by the President is not enough. We are not persuaded that the President acted beyond his authority in this case: both the words of the Constitution and the history of the nation support the President's authority” Evans, at 1222.
In Canning, the appeals court, after invoking the legal fiction of “original intent,” insisted that there was only one possible meaning to the noun “Recess” as that word appears in Article II, §2, cl.3 of the Constitution: “It is this difference between the word choice ‘recess’ and ‘the Recess’ that first draws our attention. When interpreting a constitutional provision, we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution. District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008). Then, as now, the word ‘the’ was and is a definite article. See 2 Samuel Johnson, A Dictionary of the English Languag0 2041 (1755)(defining ‘the’ as an ‘article noting a particular thing’ (emphasis added)). Unlike ‘a’ or ‘an,’ that definite article suggests specificity. As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said ‘the Recess,’ what they really meant was ‘a recess.’ This is not an insignificant distinction. In the end it makes all the difference.” Canning, at 17.
Further, the court opined, “Six times the Constitution uses some form of the verb ‘adjourn’ or the noun ‘adjournment’ to refer to breaks in the proceedings of one or both Houses of Congress. Twice, it uses the term ‘ the Recess’: once in the Recess Appointments Clause and once in the Senate Vacancies Clause, U.S. Const. art. I, § 3, cl. 2. Not only did the Framers use a different word, but none of the ‘adjournment’ usages is preceded by the definite article. All this points to the inescapable conclusion that the Framers intended something specific by the term ‘the Recess,’ and that it was something different than a generic break in proceedings.” Canning, at 17.
As a matter of simple logic, the court argued that, “The structure of the Clause is to the same effect. The Clause sets a time limit on recess appointments by providing that those commissions shall expire ‘at the End of their [the Senate’s] next Session.’ Again, the Framers have created a dichotomy. The appointment may be made in ‘the Recess,’ but it ends at the end of the next ‘Session.’ The natural interpretation of the Clause is that the Constitution is noting a difference between ‘the Recess’ and the ‘Session.’ Either the Senate is in session, or it is in the recess. If it has broken for three days within an ongoing session, it is not in ‘the Recess.’” Canning, at 17-18.
The three judges also insisted that, at the time the Constitution was drafted 1787, there was only one possible definition of the meaning of the noun “Recess”as modified by a definite article, “the,” and that they knew, for certain, the precise meaning that the Founders intended. The court thus engaged in a feat of legerdemain and disregarded all contrary definitions of “Recess’ that contemporary dictionaries showed the Founders would have also understood the noun to mean. For example, the Evans Court noted that “The dictionary definitions that have been called to our attention (or that we have found) did not, for example, speak of a minimum time. See, e.g., A Dictionary of the English Language (1755) (reprinted 1967) (defining ‘recess’ as ‘retirement; retreat; withdrawing; secession’ or ‘remission and suspension of any procedure’). And the text of the Constitution does not differentiate expressly between inter- and intrasession recesses for the Recess Appointments Clause.” Evans, at 1224.
Nevertheless, the D.C. Court of Appeals concluded: “In short, we hold that ‘the Recess’ is limited to intersession recesses. The Board conceded at oral argument that the appointments at issue were not made during the intersession recess: the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued. 158 Cong. Rec.S1 (daily ed. Jan. 3, 2012). Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception. Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated. See 29 U.S.C. § 153(b); New Process Steel, 130 S. Ct. at 2644–45.” Canning, at 30.
After the panel successfully imposed a judicial imprimatur upon its own definition of the noun “Recess,” the three judges next turned their attention to the meaning of the verb “happen” as that verb appears in the recess appointments provision. “ Upon a simple reading of the language itself, we conclude that the word ‘happen”’could not logically have encompassed any vacancies that happened to exist during ‘the Recess.’” Canning, at 31.
“For our logical analysis of the language with respect to the meaning of ‘happen’ to be controlling, we must establish that it is consistent with the understanding of the word contemporaneous with the ratification. Dictionaries at the time of the Constitution defined ‘happen’ as ‘[t]o fall out; to chance; to come to pass.’1 Johnson, supra, at 965; see also Evans, 387 F.3d at 1230 & n.4 (Barkett, J., dissenting) (surveying a variety of eighteenth-century dictionaries and concluding that they all defined ‘happen’ similarly). A vacancy happens, or ‘come[s] to pass,’ only when it first arises, demonstrating that the Recess Appointments Clause requires that the relevant vacancy arise during the recess. The term ‘happen’ connotes an event taking place — an action — and it would be plainly incorrect to say that an event happened during some period of time when in fact it happened before that time.” Canning, at 31.
Hence, the court concluded, “In light of the extensive evidence that the original public meaning of ‘happen’ was ‘arise,’ we hold that the President may only make recess appointments to fill vacancies that arise during the recess.” Canning, at 39.
Despite its assurance that the verb “happen” could only be understood as a synonym for the verb “arise,” the D.C. Court of Appeals committed an assault and battery upon the Englsih language as it intentionally chose to disregard other well-established 18th century understandings of the verb “happen.” For example, the NLRB and the Department of Justice, in their reply brief, emphasized that “As explained almost hundred years ago, the term ‘happen’’does not undisputedly mean, as the Company suggests, ‘happen to occur’; it “may mean, also . . .‘happen to exist.’” 1 Op. Att’y Gen. 631, 632 (1823). When ‘determining the true construction of a constitutional provision the phraseology of which is in any respect of doubtful meaning,’ courts look to “[l]ong settled and established practice” as a “consideration of great weight in a proper interpretation” of the Constitution’s text. The Pocket Veto Case, 279 U.S. at 688-90 (internal quotation marks omitted).”(NLRB’s Reply Brief, at 66)
The three judges in this case, despite their claim of fidelity to the contemporary meaning of words, also ignored the etymology of the verb happen: “c.1300, ‘to come to pass, occur,’ originally ‘occur by hap, to have the (good or bad) fortune (to do, be, etc.);’ see hap (n.). Replaced Old English gelimpan, gesceon, and Middle English befall. In Middle English fel it hap meant ‘it happened.’ Related: Happened; happening.” OnLine Etymology Dictionary.
The pronunciamentos of the three appeals court judges regarding the precise meaning of words are little different from the entreaties of Christian fundamentalist preachers who insist upon a literal interpretation of the bible. The judges’ convictions that the precise and unambiguous meaning of words in the text of the constitution -as they were understood by the Founders at the time the document was drafted - must alone control, and that all ambiguities, inferences and subsequent evolutions in the meaning of words must be disregarded, is a theological, rather an a legal proposition.
As applied, the judicial doctrine of “original intent” imposes the dead hand of the past upon the present; reduces the constitution to a desiccated, no longer relevant docment; and perverts constitutional analysis into an exercise in exegesis.
Toward the end of its decision, the panel piously invoked the words of Chief Justice John Marshall in Marbury v. Madison: “As we recalled in our analysis of the first issue, ‘[i]t is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.’ Marbury, 5 U.S. (1 Cranch) at 177.” Canning, at 37.
Ironically, the advocates of strict construction and constitutional literalism fail to comprehend that their fidelity to the doctrine of original intent may also be the cause of their undoing. In their zeal to find new tools to diminish the ability of the government to act on behalf of the public interest, they overlook one obvious but fatal flaw in their view of what the Constitution explicitly authorizes: John Marshall’s decision in Marbury v. Madison notwithstanding, there is no language that can be found anywhere in the text of the United States Constitution that expressly suggests or permits the Supreme Court or any judges of the United States to pass upon the constitutionality of statutes enacted into law by the Congress or to declare the acts of the chief executive unconstitutional.
Although Alexander Hamilton in Federalist No.81 may have intimated that such a power might be a necessary extension of the Supreme Court's jurisdiction to enforce Article VI of the Constitution, the Supremacy Clause, that is incredibly fragile scaffolding upon which to build an entire school of aggressive, arrogant jurisprudence that is determined to reign in the powers of the federal government.
The lack of explicit textual authority in the constitution that would support the kind of judicial overreach in which the appeals court in Canning engaged should prompt the Court of Appeals and the five right-wing jurists on the Supreme Court to ponder the words allegedly attributed to Andrew Jackson in response to the Supreme Court’s decision in Worcester v. Georgia, 31 US 515 (1832), "John Marshall has made his decision, now let him enforce it!"