[Steven Semeraro is a Professor of Law at Thomas Jefferson School of Law. This is Part 4 of an exchange between Professor Semeraro and Professor Bryan Wildenthal. Part 1 is here, part 2 is here, and part 3 is here. Thanks to both Steve and Bryan for thier contributions. –MDR]
Bryan Wildenthal makes an unassailable case for a narrow recess appointment power if one believes that the goal of constitutional analysis should be to determine the meaning of the Constitution's words in the sense of what an educated reader in 1791 would have thought that the words meant as applied to then-contemporary issues.
I disagree with his method because I don't think that it can be justified. Original meaning analysis most plausibly rests on the notion that the Constitution was ratified through a democratic process, and we should therefore interpret it to mean what those who voted to ratify it thought that it meant when they cast their ballots. Presumably, ratifying voters thought that the words meant what dictionaries of the day defined them to mean. At that level of generality, original meaning interpretation sounds reasonable. But if one focuses more specifically on what ratifying voters may have thought, original meaning analysis strikes me as either unjustifiable or indistinguishable from living constitutionalism.
I reach this conclusion by considering three possibilities about the thought process of ratifying voters. First, they may not have focused on the particular meaning of the clause at issue. And if that's the case, the democratic approval justification loses its punch for me. Why should we care about the meaning of words to people who didn't take that meaning into account in casting their votes?
Second, if ratifying voters did think carefully about a particular provision they would have understood both (1) the principles underlying it, and (2) that those principles would be employed to resolve future questions triggering the clause, even when they themselves would not have been able to anticipate the question. Assuming to the contrary (the third possibility) that ratifying voters would have (a) have considered a clause, but (b) failed to understand the principles motivating the words or assumed that those principles would never be extended beyond what they could then foresee, would again remove the justification for using the voters' understanding as a guiding principle for the future. Why defer to the understanding of someone so narrow minded and short sighted?
Living constitutionalism, as I understand it, is thus the application of what thoughtful ratifying voters would have anticipated. It has little to do with the notion that the Constitution is old and outdated. It rests on the notion that even one day after ratification, issues would arise on which the Constitution's words may apply, but that neither the drafters nor the ratifying voters would have anticipated. For a living constitutionalist, those issues should be resolved by determining how the principles embodied in the Constitution could best be applied to new questions.
In thinking about the "advice and consent" and the "recess appointment" clauses, the underlying principles seem clear to me. With respect to the former, by choosing the phrase that they did, the drafters must have been looking to a principle that differed from an approval or veto power on behalf of the Senate. The chosen phrase points to a principle that the Senate should play a role in ensuring that federal appointees would be qualified individuals who were experts in their fields, not merely political cronies of the President. But it is the President who has the appointment power, not the Senate. Qualified appointees should be confirmed.
As for the recess appointment clause, the underlying principle seems even clearer to me. Despite the value of Senate advice and consent, situations could arise where the need for an immediate appointment would outweigh the value of Senate input for the remainder of that term of Congress. The notion that the drafters (or thoughtful ratifying voters) would have assumed that only one objective fact — the Senators couldn't get to Washington fast enough because then-existing means of transportation were very slow — justified a recess appointment is conceivable. But it is far from the best interpretation of the principle underlying the clause, because so many other conceivable reasons would also justify a recess appointment.
These principles lead me to conclude that if
(1) the Senate does not reject an appointee, but simply fails to confirm despite ample opportunity to do so; and
(2) the Senate as a practical matter goes into recess; then
(3) the President should be able to make a recess appointment of the slow-rolled appointee lasting the remainder of that Congress.
With respect to at least one of the appointees at issue, this standard seemed to be met. Bryan's appeal to the need for the Senate and the President to compromise seems to me out of place. I don't understand how the principle of forced compromise could be embodied in the "advice and consent" clause. The drafters would have used the phrase "approval of the Senate" or "subject to the veto of the Senate" if they had that sort of system in mind. I'm willing to consent to many things that I'd never approve if the power to approve were in my hands.
Finally, I don't think that this assessment of the principles underlying the recess appointment clause requires the courts to make any difficult line-drawing decisions. Whether to make a recess appointment should be the President's decision to make, knowing the impact that it would have on his legislative agenda and future elections. I think that President Obama did it in this case knowing that his legislative agenda would not suffer, because the existing Senate had no interest in compromising on anything, and calculating that making these recess appointments would benefit his party in future elections.
As a short post-script, I acknowledge that my conclusions here are debatable. But I think that the debate should focus on the best application of the principles underlying the words of the Constitution rather than on what a ratifying voter would have understood the words to mean either separately from the principle underlying them or without appreciation that principles may apply beyond one's provincial vision.
Posted at 10:50 AM