JURIST Guest Columnist Ilan Wurman, Stanford Law School Class of 2013, argues that the US Court of Appeals for the District of Columbia Circuit’s decision holding that US President Barack Obama’s National Labor Relations Board (NLRB) appointments were unconstitutional reveals methodological problems with the use of history to answer questions of legal construction…

Interesting theoretical and methodological issues emerge from the US Court of Appeals for the District of Columbia Circuit’s Noel Canning v. National Labor Relations Board decision, which held that US President Barack Obama’s intrasession “recess” appointments to the National Labor Relations Board (NLRB) were unconstitutional. One issue is the use of history and longstanding practice, or the absence thereof, to determine originalist questions. The panel employed the method of Printz v. United States — in which the US Supreme Court held federal commandeering of state executive officers to be unconstitutional — whereby a longstanding absence of a particular exercise of power in the early Republic implied to the majority on the Court that the power never existed. Yet recent scholarship has shown that the majority’s interpretation of the historical absence of the congressional practice of commandeering in Printz had very plausible, non-constitutional reasons. While this scholarship may not be as relevant to the absence of intrasession appointments, it does suggest that courts ought to consider more carefully their use of what one might call an absence of history to determine answers to originalist questions.

In Printz, the Supreme Court gave significant weight to the absence of any federal commandeering of state executive officials in the early Republic. To be sure, in Printz “there [was] no constitutional text speaking to [the] precise question.” So the answer to whether the power of commandeering existed had to “be sought in historical understanding and practice” and “in the structure of the Constitution.” (Conversely, in Canning there were textual provisions to analyze; I am questioning only the use of history as a supplement to the textual analysis.) The court acknowledged, quoting an earlier decision by Chief Justice William Howard Taft, that “contemporaneous legislative exposition of the Constitution…, acquiesced in for a long term of years, fixes the construction to be given its provisions.” While it did not give the absence of a particular exercise of power “conclusive” weight, the Court declared that such an absence would give it “reason to believe that the power was thought not to exist.” The Court concluded that because there was no exercise of federal commandeering power in early congressional practice, that power, which would have greatly aggrandized the federal government, likely did not exist.

Wesley Campbell has shown, however, in an article forthcoming in the Yale Law Journal, that it was the Anti-Federalists who desired commandeering of state officials, believing that state officers would act as checks on the federal government. A key reason that the Congress, under the Articles of Confederation, failed to raise revenue from the states — a flaw fatal to that charter and which ultimately led to the Constitutional Convention — was because some states would not give the federal government the power to appoint or remove the officials who would collect the imposts. To satisfy the Anti-Federalists, who still desired state collection of federal taxes, the Federalists had to compromise on this issue. Even Alexander Hamilton, who preferred a sprawling national bureaucracy, focused during the ratification debates on the role states and their officers would play in executing federal law. Campbell argues quite convincingly that the absence of early congressional commandeering resulted simply from a bait-and-switch. Now that the Federalists were in control of the government under the ratified Constitution, there was no need to use state officers to execute federal laws. In other words, while the Supreme Court in Printz gave significant weight to this absence of exercising the power of commandeering, there are quite possibly more plausible, non-constitutional reasons why the power was never exercised, even though both Anti-Federalists and Federalists seemed to agree that such a power would in fact exist.

This analysis points to the challenges inherent in relying on the absence of historical practice; and yet the DC Circuit in Noel Canning relied on just such an absence of historical practice in deciding whether the President could fill a vacancy during an intrasession recess rather than “the Recess” in between official sessions of the Senate. It is important to repeat that the holding can still be supported textually. It is worth challenging the use of history in this fashion, however, lest it become too commonplace in court decisions; the DC Circuit panel, after all, wrote that “[t]he interpretation of the [Recess Appointments Clause] in the years immediately following the Constitution’s ratification is the most instructive historical analysis in discerning original meaning.” How we interpret early congressional practice is, in other words, very important.

The panel seemed to recognize that there was a logical flaw in its reliance on the absence of intrasession appointments: “[I]t is true that intrasession recesses of significant length may have been far less common in those early days than today[.]” Nonetheless, the court immediately proceeded to declare, it is “the case that the appointment practices of Presidents more nearly contemporaneous with the adoption of the Constitution do not support the propriety of intrasession recess appointments.” This conclusion does not seem correct. The historical evidence may tell us nothing at all one way or the other; but it surely does not tell us that an act undertaken in a given condition is unconstitutional when that condition simply did not exist in the early American republic.

The panel then proceeded to decide the question of whether the vacancy itself had to occur or “happen” during “the Recess.” As the panel admitted, the issue was unnecessary to resolve which raises a separate question of methodological propriety. But, putting that aside, the panel again relied on historical practice. Here its evidence was better as it did not rely on the absence of practice but rather on affirmative practice. The court astutely noted that President George Washington seemed to understand the clause to require that the vacancy itself arise during a recess: If not enough time remained in the session to ask a person to serve in an office, President Washington would nominate a person without the nominee’s consent, and the Senate would confirm the individual before recessing … Then, if the person declined to serve during the recess, thereby creating a new vacancy during the recess, President Washington would fill the position using his recess appointment power. The court provided additional historical evidence from the writings of Edmund Randolph and Alexander Hamilton.

In short, this kind of historical evidence of affirmative actions is much superior to relying on the absence of the exercise of a particular power, which may result from many non-constitutional reasons political conditions that demand a refusal to exercise the power (as in commandeering), or the absence of a condition necessary for the exercise of such power (arguably the case with intrasession recess appointments). It is interesting to note in conclusion, however, that even these affirmative pieces of historical evidence were somewhat controversial in the Noel Canning decision. It was precisely on this point that Circuit Judge Thomas Griffith dissented in his concurring opinion. He first noted that the question of whether a vacancy must “happen” during a recess was unnecessary to resolve the case; he then added that the view that a vacancy need only “happen to exist” during a recess is a “position [that] dates back to at least the 1820s…, making it more venerable than the much more recent practice of intrasession recess appointments.”

To conclude, whether correctly decided or not, Noel Canning reveals persistent problems with the use of history to answer originalist questions. While history is undeniably a valuable tool in discerning original meaning, some methodological fine-tuning appears necessary to strengthen it.

Ilan Wurman is the president of the Stanford Federalist Society and an Executive Editor of the Harvard Journal of Law and Public Policy. His work experience includes internships with the US Attorney’s Office, Northern District of California and the law office of Pillsbury Winthrop Shaw Pittman in San Francisco, California.

Suggested citation: Ilan Wurman, Noel Canning: Proving Too Much with the Absence of History, JURIST – Dateline, Feb. 12, 2013, http://jurist.org/dateline/2013/02/ilan-wurman-recess-appointments.php