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01/13/2014 10:37 am ET | Updated Mar 15, 2014

Two Eighteenth Century Feuds That Could Disarm the President in the Fight Against Senate Gridlock

Next week, the U.S. Supreme Court will be looking to our founding history to decide a major challenge to the president's use of executive power. If the justices get the historical record wrong, it could deprive the president of a powerful tool in the fight against Congressional gridlock -- the recess appointment.

Republicans' approach to executive branch appointments has been one of the most successful components of their strategy against President Obama's political agenda. Time and time again during President Obama's tenure in office, Republicans have crippled entire executive branch agencies simply by refusing to approve anyone to run them.

Last year's filibuster reform efforts may provide a temporary fix to the problem, but if the midterm elections hand control of the Senate back to Republicans, Obama's chances of winning approval for any future executive appointments could evaporate.

The only sustained weapon that a president has to combat such Senate roadblocks is one of the presidency's more obscure powers -- the "recess appointment." The Senate must be in session to utilize its constitutional authority to advise and consent to most executive branch appointments. When the Senate is in recess, Article II, Section 2, clause 3 of the Constitution gives the president the power to appoint executive officers on his own, through special recess appointments.

These recess appointments are brief. They last only until the end of the next session of Congress. But they allow the government to keep functioning while the Senate is away.
And over at least the past thirty years, presidents from both parties have used the recess appointment power as a check against Senate abuse in executive nominations. If the Senate refuses to approve anyone to an open post, the president can simply fill the slot once the Senate adjourns, allowing the agency to do business, if only for a short time.

But a case being argued at the United States Supreme Court next week, NLRB v. Noel Canning, threatens to do away with the chief executive's ability to use recess appointments to deal with senatorial stonewalling.

In this case, lawyers for the challenger, the Noel Canning Company insist that in order for the president to make a valid recess appointment, the vacancy must arise during the recess. If the office becomes vacant while the Senate is sitting, the president cannot fill it once the Senators leave town. He just has to wait until the Senate returns.

As Garrett Epps has argued here, if Noel Canning is correct, it would sound the death knell for the recess appointment as a strategic tool. For the vast majority of appointees, the only road to confirmation would lie through the senatorial morass.

Noel Canning's argument may seem awfully hard to square with the obvious purposes of the recess appointments clause -- providing for the efficient operation of government, and ensuring that butts are put in vital seats in the event of a crisis. It would also overturn settled practice dating all the way back to Washington himself, under which presidents have traditionally utilized recess appointments to fill vacancies without any regard for when those vacancies arose.

But this case will be difficult for the court to resolve nonetheless because it will be writing on a completely blank slate -- the court has never before interpreted the recess appointments clause. Unable to apply any previous precedent to resolve the case, the court is likely to seek refuge in the opinions of prominent members of the founding generation, mining every scrap of paper they left behind for clues as to how the Constitution ought to be applied.

Noel Canning's lawyers claim this history is on their side. They have unearthed two prominent members of the Philadelphia Convention who shared their views, Edmund Randolph and Alexander Hamilton.

But the court should be extremely wary of both Randolph's and Hamilton's opinions, which reflect their authors' private grievances and preconceived biases far more than the dominant understanding of the time on the meaning of the recess appointments clause.
Edmund Randolph may be little remembered today, but he was one of the major figures of the founding period, serving both as governor of Virginia and one of its delegates to the Philadelphia Convention.

Washington also tapped Randolph as the nation's first Attorney General in 1789. During his tenure, Randolph opined that Washington could not fill the position of the "coiner of the mint" by recess appointment because Congress was in session when that office was first created.

Randolph's opinion is probably not the product of a disinterested analysis. Randolph was extremely suspicious that the Constitution gave too much power to the president, so much so that he refused to sign the document in Philadelphia. One of Randolph's greatest concerns was the recess appointment power itself -- during ratification, he publicly argued that Virginia should not ratify the Constitution until the recess appointment power was removed. It seems likely Randolph was attempting to do through interpretation what he had failed to do in convention -- hobble the president's recess appointment power. It is a disappointed dissenter's view, not the accepted understanding of the period.

Indeed, Randolph's opinion did not fare well even in its own time. Three of the four first presidents, Jefferson, Madison, and even Washington himself, openly flouted it, filling numerous positions by recess appointment that were vacant while the Senate was in session. And while President Adams followed Randolph's opinion, he openly questioned its soundness. In 1823, Attorney General Wirt finally officially laid the Randolph opinion to rest, by issuing his own opinion to the effect that a vacancy could be filled by recess appointment regardless of when it arose.

Randolph, it seems, was in a distinct minority. But he was not alone. He had a powerful ally in the New York firebrand Alexander Hamilton. In 1799, during John Adams's presidential administration, Secretary of War James McHenry asked Hamilton whether the president could make recess appointments to several army posts that had been open while the Senate was in session. Hamilton's reply was blunt: "I am clearly of the opinion that the president cannot fill a vacancy which happens during a session of the Senate."

Hamilton's opinion seems especially puzzling, given the expansive, even magisterial, conception of executive power he advocated during the framing and ratification periods. It was Hamilton after all who thought the president should serve for life. In fact, it was Hamilton who first advanced the idea of granting the president the recess appointment power, and his conception of that power was far grander than the version eventually adopted in Philadelphia. He thought the president should be able to unilaterally appoint all of his own cabinet officials, leaving only inferior offices subject to Senate approval. It is hard to believe that the same man would argue for such a confined reading of the recess appointment clause only twelve years later.

The best explanation for this remarkable shift in position seems to be that Hamilton's later opinion was a political calculation in a longstanding feud. Hamilton's ability to adopt politically convenient beliefs is famous, and he was an ardent foe of John Adams -- with whom he had maintained a very bitter, very public feud throughout their lives. In fact, Adams once called Hamilton his "Arch enemy." It seems entirely likely that when asked to opine on appointments in Adams's administration, Hamilton took the occasion to create a little mischief.

In the end, the Noel Canning case shows us the real perils of relying too heavily on isolated instances from our founding history to interpret the Constitution. The Constitution was not handed down from Mount Olympus. And the founders were not demigods but people, full of all the capriciousness, petty vindictiveness, and bias humanity can muster.

They were also politicians involved in the bloody squabbles of their day. And as Alexander Hamilton himself said, "In contriving any system of government . . . every man ought to be supposed a knave; and to have no other end in all his actions, but private interest."

*CARL CECERE, is an appellate lawyer who has practiced before the United States Supreme Court. He has written for the Harvard Journal of Law and Public Policy, SCOTUSblog and the Constitution Daily--the blog of the National Constitution Center. He is also a member of Legal Advisory Board for The Constitutional Sources Project (www.ConSource.org), a nonpartisan, not-for-profit organization devoted to increasing understanding of United States constitutional history. He can be reached at ccecerepc.com.