The Supreme Court today gave a stinging defeat to President Barack Obama in National Labor Relations Board v. Noel Canning, holding that the president did not have any power to make recess appointments during the three-day break between pro forma sessions of the Senate. The decision depended on a close textual reading of the basic provision, which in full states:

Article II, Section 2. 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.

Three Constitutional Queries. The outcome of the case was unanimous in rebuking the president. But a common five-to-four split reasserted itself in this case. The liberals, joined by Justice Anthony Kennedy, took the position that the only reason that the president was in violation of the law was that he sought to make the appointment during the short three-day breaks between pro forma sessions of the Senate, which did not qualify as a recess under the Constitution. Justice Stephen Breyer, speaking for this block, held that the president could not disregard the Senate’s own view of when it was in session. Since the purpose of recess appointments was to ensure that the president did not have to go without filling key offices for long periods of time, the three-day breaks were not long enough to trigger his power to make recess appointments. The president’s effort to fill spots on the National Labor Relations Board was therefore a loser.

The four conservative Justices agreed with Breyer on this last point, but took explicit issue with him on two earlier issues that stem from the interpretation of the basic clause. The first of these is whether the words “during the Recess of the Senate” allow the President to make appointments during intra-sessional breaks, namely those that happen between the first and second year of any Congressional Section. The second question is whether the words “as may happen” covers only those offices that became vacant between sessions, or those vacancies in office that arose when the Senate was in session but failed to fill the position before adjournment.

I think that there is little reason to dispute the narrowest ground on which the liberal majority rested its case. As Justice Breyer noted, the recess appointment is a secondary way of filling offices, which would be expanded beyond recognition if it could be exercised during short adjournments when the Senate is back in business in a matter of three days or less. In general each branch of government sets its own internal rules. To rule that the president can disregard the Senate is to undermine the principle of parity between branches, which is the keystone to the architecture of the federal government.

On the other two points, I think that Justice Scalia has the better of the argument. More specifically, Justice Breyer took the position that the word “the” need not be read to refer to a distinct object, but could cover “a term, used generically or universally.” The point may be true in the abstract, but not in connection with this case, where the word “the recess” screams out for the singular. In this connection it is important to note that the last phase “at the End of their next Session” does not mean at the end of the next intra-sessional break. The term “session of Congress” has a clear meaning. The term “the recess” is in the singular and means only one. Yet there is no limit on the number of intra-session “recesses,” for Congress can break not only for summer, but for Memorial, Independence and Labor Days. Justice Breyer tries to paper over these difficulties by imposing a minimum period of these breaks. More than ten days and the recess appointment is safe; less than three it is not. Anywhere in between is doubtful.

Yet note the difficulties. Of these time intervals, there is not a textual hint, and none of those benchmarks is relevant to the recess that takes place at the end of any given session. Those recesses are recesses whether or not they are of “substantial length.” There is also this key institutional difference. With intra-session breaks, the same people who went on break will come back, so there is no risk of personnel changes that could cloud the political judgment. Excluding the intra-session breaks avoids all this unnecessary confusion that is introduced by Justice Breyer’s search for ambiguity where none exists. It seems therefore that even if the common practice has been to allow appointments between the first and second term of a given session, it is inconsistent with the constitutional text.

The issue then arises whether the long-term customary practice should allow acquiescence in these appointments. On that issue, I take a split position. I would certainly respect any person now holding office if appointed in the intra-sessions. But there is no deep reliance interest at stake in this case. If the text is clear, the practice should not override it, unless to do so causes grave damage to the constitutional structure. On that issue, Justice Breyer is right to note that it is indeed a danger to allow key offices to go vacant between terms. But so long as we can have interim department heads that danger is mitigated. Moreover, it is equally important to note that there are other dangers as well, particularly if the president appoints someone during recess who could not obtain Senate confirmation, or worse, who was denied Senate confirmation. And we cannot discount the risk that the president will put his nominee forward (as in this case) toward the very end of the term, knowing that Senate could never have the time to give that nomination serious consideration. When the practical considerations come out both ways, the case for the customary rule is not clear, so that the text, if clear, should control. In this case, Justice Breyer’s opinion smacks too much of Chevron deference, or the fine art of introducing gratuitous ambiguity into an otherwise clear text.

The same point can be made about the other phrase “as may happen” during the recess. Again, it is always possible to manufacture an ambiguity by remaining in permanent Chevron mode. But here the words “that may happen” should be read in opposition to the phrase “as may exist.” The fine art of creating ambiguity where none exists thus takes two phrases that mean the opposite and confers upon them the identical meaning. At this point, the same question arises as on the previous question. Does the faithful textual interpretation lead to massive dislocation in government operations? If so, then follow the past practice. But if not, then don’t. The equities are the same as above, so the text should rule.

Abolish Independent Agencies? At this point, it is important to take a step back from the immediate controversy, for there is a structural elephant in the closet that goes largely unattended in this case. Why do we have independent administrative agencies exercising, as the NLRB does, quasi-judicial powers? It is no accident that the reason the president resorted to the recess power of appointment was the utter stalemate in the Senate over nominees to the NLRB. The current practice gives the president’s party three seats on the NLRB and the opposition two. Since there is only a single class of issues at stake, the line of division between Democrats and Republican is hard and clear. Each party will chose nominees that are faithful to its position, and the manifest polarization leads to delays inside the Senate confirmation process.

So I have a better idea, which is long overdue. It may well be that independent administrative agencies are here to stay. But there is no reason to allow them to flourish when they exert a quasi-judicial role, acting as it were as district courts on matters within their jurisdiction. That new practice has manifest inconvenience, and it leads to the blockages that provoked this case. It is a pity that the Supreme Court did not tackle that issue. Perhaps next year.

Recommended Citation: Richard Epstein, Symposium: Custom and textual meaning – Chevron deference should not be allowed to manufacture constitutional ambiguity, SCOTUSblog (Jun. 26, 2014, 5:55 PM), https://www.scotusblog.com/2014/06/symposium-custom-and-textual-meaning-chevron-deference-should-not-be-allowed-to-manufacture-constitutional-ambiguity/