It doesn't matter which theory of executive power that the conservative political views of Antonin Scalia require him to advance at any given time. His way of advancing them remains consistent: the US supreme court justice makes highly tendentious historical arguments in a tone suggesting that only a fool could disagree with him.

Scalia's concurrent opinion issued as part of Thursday's court ruling on the constitutionality of presidential recess appointments is no different.

The case, NRLB v Canning, brought to the high court one question: whether a three-day recess of the US Senate was long enough to justify President Obama's recess appointments to the National Labor Relations Board. While the constitution normally requires Senate approval of executive branch appointments, there is one exception: Article II empowers the president to fill up "all vacancies that may happen during the recess of the Senate" without its approval, though such appointments expire at the end of the Senate's term.

In a victory for the administration's opponents, the court unanimously decided that that the three-day break was not a constitutional "recess" – and that the Obama nominees now at the NRLB were illegal. The court also ruled that pro forma sessions – that is, sessions in which the Senate does not conduct any business but stays officially "in session" to prevent the president from making recess appointments – still count as sessions.

But the majority opinion, authored by Justice Stephen Breyer, held that the president retained the power to fill up any existing executive and judicial branch vacancies during a recess within a session so long as the recess was long enough, and that 10 days would likely be sufficient.

For Justice Scalia and the three other most conservative members of the Court (Chief Justice Roberts and Justices Thomas and Alito), that majority opinion didn't restrict executive power as it has been exercised for nearly two centuries nearly enough.



Instead, Scalia and the conservative bloc endorsed the radical position taken by the Court of Appeals for the DC Circuit: that the recess appointment power only applies to recesses between Senate sessions and not to those within them, and that only vacancies that occurred within a particular recess can be filled by a recess appointment.



For Scalia – as usual – the question presented in the case was allegedly an easy one because the text of the recess appointments clause is "unambiguous". The recess appointment power, he argues, applies only to recesses between Senate sessions and not within them. By holding otherwise, Scalia charges, "the majority casts aside the plain, original meaning of the constitutional text".



(There is a certain irony to that argument which Scalia biographer, Bruce Allen Murphy has previously noted: Scalia first rose to prominence in Republican political circles as an Assistant Attorney General in the Nixon administration by inventing broad theories of executive privilege designed to thwart congressional investigations.)

Scalia's claim that the text of the recess appointment clause has only one reasonable interpretation simply beggars belief. As Breyer observed, among the people whom Scalia deems incapable of understanding the English language are Thomas Jefferson, who wrote in a letter than the recess appointments clause was "certainly susceptible of [two] constructions".

Besides which, that a majority of the Supreme Court disagrees with Scalia's interpretation of the text – even though it agrees with his bottom line on the case – also makes it hard to accept that the alternative, accepted reading of the text is, as Scalia implies, simply irrational.

Even worse for Scalia’s assertion is the evidence provided by nearly two centuries of actual government practice. Presidents have been making intrasession recess appointments since the administration of Andrew Johnson in the 1860s. (That long history understates the case for recess appointments somewhat, since the Senate rarely took intrasession breaks before the Civil War.) Many attorneys general from both parties have held that such appointments are constitutional, though it seems unlikely that all of them would have simply ignored the clear textual command of the Constitution. And, finally – which is even worse for Scalia point – he cannot cite any example of the Senate objecting to intrasession recess appointments.

It is, to put it mildly, implausible that the Senate would tolerate the violation of an "unambiguous" textual command in a way that undermined its own authority. The much more likely interpretation is that, despite his arrogance, Scalia’s view of the text is not only not compelled by the Constitution but is totally idiosyncratic.

And yet, there's a reason why Scalia must assert a certainty that isn't actually justified by the text: without such justifications, Scalia's position has nothing else to recommend it. Trying to make 18th century practices work in our government – as it is actually practiced in the 21st century – would be disastrous. Even if Scalia is right that the framers didn't anticipate intrasession recess appointments, they also didn't anticipate modern partisan arrangements that would result in the Senate serially rejecting executive branch and judicial nominees.

As he attempts to throw monkey wrenches into the operation of the federal government, Scalia always wants to claim that the text of the Constitution made him do it. But it hasn't – and the court's majority was right to reject his reasoning.