I want to begin by thanking Professor Ramsey for this opportunity to respond to his post and further develop my thoughts from my SCOTUSblog post on Noel Canning and original meaning.
I’d like to state at the outset something that might have been unclear from my original post. The report I referenced in my original post was one that was prepared by ConSource, a nonpartisan, not-for-profit organization devoted to increasing understanding of United States constitutional history. I sit on ConSource’s Legal Advisory Board, but the opinions stated in my SCOTUSblog piece, as well as this reply, are my own. ConSource assiduously avoids taking positions on legal issues; the organization simply seeks to facilitate greater research and understanding of U.S. constitutional history.
Turning to the substance of Professor Ramsey’s response to my SCOTUSblog piece, I’d like to first address the assertion that I was attempting to argue for an “unchecked executive power” in the appointments process.
This was not the aim of my original post.
To the contrary, my purpose was much narrower and more modest. Instead, I take on an idea, advanced both by the D.C. Circuit and Noel Canning’s lawyers, that in answering questions about the scope of the President’s recess appointment power, we should apply a constitutional presumption that his authority should be interpreted “narrowly”—as a convenient means to paper over any ambiguities in the constitutional text or complexities in the constitutional record–simply on the assumption that the appointments provisions as a whole were enacted solely to serve as a check on the executive branch.
Let me be absolutely clear. Article II, Section 2’s division of authority over Executive-Branch appointments was certainly a check on executive authority—it gives the Legislature a strong hand in how the President runs his own branch of government, to prevent inferior-quality political cronies of the president from riding his coattails into executive offices. Hamilton said as much in Federalist 76, and contrary to Professor Ramsey’s suggestion, I see no reason to doubt Hamilton’s reasoning—at least on this point.
But as I argued in my original post, the appointments provisions were not exclusively a check on executive authority. The appointments clauses also contain important checks on legislative authority. After all, the Convention did not go so far as some wanted, and hand the appointments power over to the legislature completely. It also left one branch of the legislature—the House—out entirely, which concerned others, like Richard Henry Lee. And most importantly, the President retains the most important tool in the appointments process—the right to name the nominee, with the Senate’s role relegated to simply passing on the President’s presumptive choice. In short, again, as I noted in my original post, the recess appointments provisions as a whole reflect a balance of power between branches; a balance, in fact, still heavily weighted in favor of the President.
I did not say all of this in my original post—the brevity required of a blog post prevented an exhaustive exploration of the topic. But I did provide some reasons why the balance of power was struck in this manner. I cited to sources that have not yet been mentioned in the Noel Canning briefing to support the idea that the Framing generation was equally suspicious of legislative overreach in the appointments process.
Professor Ramsey is critical of the fact that I relied only on Anti-Federalists to support this point, suggesting that their opinions should carry no weight because their proposals were ignored. But he agrees that there are occasions on which the Anti-Federalist’s opinions should be considered, even though they lost. This is one such area. I chose Anti-Federalists on purpose. And I did so, not because their ideas had any sway, but because of the segment of public opinion they likely represented.
While the Anti-Federalists were not all of one mind, they were generally united in their concern that the Constitution vested too much power in the Executive Branch—the power to wage war, veto laws, and run the federal bureaucracy. Indeed, the Statement of the Minority of the Pennsylvania Ratification Convention, the document I cited in my original post that serves as a consolidation of many of the important Anti-Federalist concerns, showed great concern that the “gift of the numerous places of honor and emoluments at the disposal of the executive” would make the government subject to “corruption and undue influence.” And as Professor Ramsey noted, the Pennsylvania Anti-Federalists were familiar with a system that “radically restricted and divided executive power.”
It is certainly relevant that this group of Anti-Federalists thought that the Constitution went too far in interfering with the performance with the Executive’s duties. It suggests that lots of people in the center probably felt the same way.
Indeed, there were a number of other members of the Founding generation that expressed their distrust for legislative involvement in the appointments process. Several of these were listed in the ConSource report. James Wilson, for example, (speaking of the process for judicial appointments) feared that involving the legislature would result only in “intrigue, partiality, and concealment.” And Madison (again, speaking of the judicial appointments process) defended the balance in the appointments process between legislative and executive by noting that it put primary responsibility for appointments with the President, and thereby minimized the potential for abuse by the Legislative branch. To Madison, this balance:
secured the responsibility of the Executive who would in general be more capable &likely to select fit characters than the Legislature, or even the [Second Branch—the Senate] of it, who might hide their selfish motives under the number concerned in the appointment . . . .
While these statements were made in reference to the judicial appointments process, they are certainly relevant in understanding the executive appointments process as well, given that the processes for each are identical. The historical record thus seems to provide nothing to justify the assumption that the appointments powers generally, or the recess appointments power specifically, should be applied with some special distrust of the President’s authority in mind. The Founders feared both Executive and Legislative corruption in the appointments process. And they designed a power sharing system specifically to minimize these pernicious influences.
Indeed, this shows exactly why it is perilous to adopt rough rules of “narrow” or “broad” constitutional construction in the first place. The text of the Constitution reflects a number of compromises and balancing of interests, some expressly stated, some implicit, and some we will never be able to discern. It must therefore be interpreted as written, without applying a thumb on the scales in favor of any governmental faction.
In the second part of my SCOTUSblog post, I discussed the opinion of the nation’s first Attorney General, Edmund Randolph, appointed by George Washington, who believed that the President had no power to make a recess appointment to a post that became vacant while the Senate was in session. I suggested that there might have been some bias in this opinion, as Randolph had been vocal in his opposition to the Recess Appointments power during the drafting and ratification of the Constitution. I also mention that several presidents, including Washington, Jefferson, and Adams, had made appointments that flouted the Randolph opinion.
Professor Ramsey challenged me on two of these presidents, Washington and Adams. But there seems to be strong, if not infallible evidence that both did, indeed, make recess appointments in conflict with the Randolph opinion.
First, as for Washington, there is at least one appointment that seems very difficult to square with the Randolph opinion—William Clarke’s appointment to serve as U.S. Attorney for the state of Kentucky. Records on Clarke’s predecessor are not particularly good, but, as Professor Ramsey says in his amicus brief in Noel Canning, there is some chance that the office became vacant during a recess prior to the one in which Clarke was appointed. That may be true, but there is no question that the position stood empty for two years, and two separate Senate sessions, before being filled.
Randolph’s opinion stands on the idea that “The Spirit of the Constitution favors the participation of the Senate in all appointments..” As an exception to the general rule of Senate participation, Randolph said the recess appointments process should be applied “strictly” and “in the case of necessity only, as where the Officer has died, or resigned during the recess, or a person appointed during the Session shall not notify his refusal to accept, until the recess.” Randolph thus believed that the recess appointment power could be used only when the Senate was unavailable to pass on the nominee, and could not be used to get around Senate participation in appointments. His interpretation thus cannot be squared with a view of the recess appointments power that would allow the president to avoid Senate confirmation, not once, but twice.
Similarly, there is also strong, although perhaps not infallible, evidence that Adams flouted the Randolph interpretation—one that he had specifically disagreed with. During his administration, Adams reluctantly agreed to follow the Randolph opinion on one set of appointments, under pressure from Alexander Hamilton. But Adams’s Attorney General, Charles Lee, would later relate to Jefferson that there were several instances in which vacancies occurred right before Senate Sessions ended, and with too little time left in the session to vet potential replacements, the President simply waited for the Senate to recess and then filled the post with a recess appointment. Lee may have been lying, I suppose, but there is no evidence to contradict what he says. And such a practice is not surprising, given Adams’s opposition to the Randolph view.
I hope this provides the evidence that Professor Ramsey seeks in support of the idea that both Washington and Adams made appointments inconsistent with the Randolph view of the
recess appointment power.
Posted at 6:45 AM