The Recess Appointments Clause has been much in the news lately. It says:
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.
In 2014, in the case of NLRB v. Noel Canning, the Court opined by a narrow majority that this clause allows the president to fill any vacancy that exists during a recess even if the vacancy began earlier than the recess, and even if the “recess” is happening within a single session of the Senate instead of between sessions. Four justices disagreed on both counts.
I just want to address here whether the vacancy can arise before the recess. Consider this analogous question: “Is it correct that the American Revolution happened in 1779?” Obviously that is incorrect, so the answer is no. The American Revolution did not happen in 1779, instead it *continued* in 1779. Same with a vacancy that began before a recess; such a vacancy did not happen during the recess. One could properly say that such a vacancy *was happening* during the recess, or that such a vacancy *happened to exist* during the recess, but it very obviously did not happen during the recess. Linguists call the word “happen” in the Recess Appointments Clause “perfective.” Here is one highly regarded explanation of perfective meaning:
[T]he whole of the situation is presented as a single unanalysable whole, with beginning, middle, and end all rolled into one; no attempt is made to divide this situation up into the various individual phases that make up the action….
In NLRB v. Noel Canning, Justice Breyer wrote the Court’s opinion, and Justice Scalia wrote an opinion (technically a concurring opinion) for the 4-judge minority. Scalia chastised the Court for not following the plain meaning:
As the majority concedes, “the most natural meaning of ‘happens’ as applied to a ‘vacancy’ . . . is that the vacancy ‘happens’ when it initially occurs.” Ante, at 22. The majority adds that this meaning is most natural “to a modern ear,” ibid., but it fails to show that founding-era ears heard it differently. “Happen” meant then, as it does now, “[t]o fall out; to chance; to come to pass.” 1 Johnson, Dictionary of the English Language 913. Thus, a vacancy that happened during the Recess was most reasonably understood as one that arose during the recess. It was, of course, possible in certain contexts for the word “happen” to mean “happen to be” rather than “happen to occur,” as in the idiom “it so happens.” But that meaning is not at all natural when the subject is a vacancy, a state of affairs that comes into existence at a particular moment in time.
In any event, no reasonable reader would have understood the Recess Appointments Clause to use the word “happen” in the majority’s “happen to be” sense, and thus to empower the President to fill all vacancies that might exist during a recess, regardless of when they arose. For one thing, the Clause’s language would have been a surpassingly odd way of giving the President that power. The Clause easily could have been written to convey that meaning clearly: It could have referred to “all Vacancies that may exist during the Recess,” or it could have omitted the qualifying phrase entirely and simply authorized the President to “fill up all Vacancies during the Recess.” Given those readily available alternative phrasings, the reasonable reader might have wondered, why would any intelligent drafter intending the majority’s reading have inserted the words “that may happen”—words that, as the majority admits, make the majority’s desired reading awkward and unnatural, and that must be effectively read out of the Clause to achieve that reading?
This blockquoted argument by Justice Scalia was a slam dunk; he didn’t need to cite any experts on the difference between “perfective” and “imperfective” meanings. I’ve done that now just for the sake of readers who like hearing from subject matter experts who are not lawyers, and as a way of reinforcing what Scalia wrote. Remember: the American Revolution did not happen in 1779.
MICHAEL RAMSEY adds: Agreed! This should not be a close case.
Posted at 6:37 AM