04/28/2014 10:45 pm ET Updated Jun 28, 2014

Scalia's Original Originalism on Presidential Appointments

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As the Supreme Court readies its ruling in the recess appointment dispute National Labor Relations Board v. Noel Canning, Justice Antonin Scalia has restated his narrowing view of constitutional originalism: "It means what it meant when it was adopted." Perhaps it is not too late to remind Justice Scalia of his former, much broader view of originalism in the context of presidential appointment authority. Scalia's 1991 Freytag et al. v. Commissioner of Internal Revenue concurrence should be fully reexamined.

Scalia's past view on appointments stands in stark contrast to the myopic method used by the D.C. Circuit when it struck down President Barack Obama's 2012 NLRB appointments. The panel's ruling eliminated the executive's recess appointment power except to fill an office in the rare instance that the vacancy opens during an intercession recess. The ruling tainted the constitutional legitimacy of thousands of past executive and judicial recess appointments made by past presidents from George Washington through George W. Bush (for example, Eugene Scalia's January 11, 2002, recess commission as Solicitor for the Labor Department).

As I argue in a recent Cardozo Law Review article, a broad view of originalism is needed to understand the Constitution's Recess Appointments Clause. It is important to start with the central mission of the 1787 Constitutional Convention: Delegates went to Philadelphia to create a national government that would work. The Republic's first constitution, the Articles of Confederation, which vested Congress with all appointment responsibility, failed quite badly. The Articles did not provide for a president. The Confederation Congress failed to administer the new Republic or execute its laws. The national legislature woefully failed to fulfill its appointment responsibilities.

The 1787 Philadelphia Framers thus remedied the Articles' chief defect by formally separating executive authority from Congress. In both form and function, the Constitution was drafted to provide effective and practical governance through a strong executive with a strong appointment prerogative. Article II, Section 2's dual appointment design was to insure that the government should always remain fully staffed. The president has predominant appointment authority for permanent appointments and exclusive discretion to make temporary appointments.

Scalia's 1991 Broad Originalist View of Presidential Appointment Authority

The foundation for a broad originalist view of federal appointments is found in Justice Scalia's 1991 Freytag concurrence:

The Framers' experience with post-revolutionary self-government had taught them that combining the power to create offices with the power to appoint officers was a recipe for legislative corruption. ... Even if legislators could not appoint themselves, they would be inclined to appoint their friends and supporters.

Scalia explained that the president has a constitutionally unique appointment trust and accountability, and that the "Appointments Clause is, intentionally and self-evidently, a limitation on Congress." Scalia quotes both James Wilson and James Madison for the "good and sufficient reasons" that "the federal appointment power was removed from Congress."

Scalia described how the Constitution's plan "depositing appointment power in a fortified President" works to "[ensure] an actual exclusion of the legislature from appointment." The Constitution not only grants the president fulsome appointment power but provides "him with the means to resist legislative encroachment upon that power."

In light of the 2011 Senate Minority and House Majority scheduling collusions designed to bluff President Obama out of making any recess appointments, Scalia's Freytag concurrence reads as prescient:

A power of appointment lodged in a President surrounded by such structural fortifications could be expected to be exercised independently, and not pursuant to the manipulations of Congress.

Recess Appointment Power as Capstone of Presidential Appointment Authority

As he considers Noel Canning, will Scalia recall his 1991 broad Freytag reasoning? His originalist perspective should not change just because Barack Obama is now signing the commissions.

The Framers' practical design was for predominant presidential authority over all permanent appointments, with the Senate restricted to an advisory-consent vote. The Senate constitutionally "advises" the president only by ex post voting "consent" to -- or rejection of -- the president's appointment choice. The president has first-mover advantage to select nominees and final discretion to sign the commission or not. Although a Senate "no" vote stops the process, the president is under no obligation to sign a commission just because the Senate votes "yes." The appointment authority is not a power equally shared between the president and the Senate.

On the same day in 1787 that the Section 2, Clause 2, accord was reached during the summer's debate, the Clause 3 temporary appointment authority was laid as the final protective capstone. Regardless of the Senate's attendance to its confirmation duties, the president's appointment authority would remain vested and operable at all times for all purposes.

The grant of unilateral executive power to sign recess commissions provided the capstone to the Convention's decision for presidential appointment predominance. Just as a capstone is quickly laid as the final protective stone on a structure that took months to build, so the unilateral authority was unanimously approved without debate.

Rather than being "assumed ambiguous by self-interested presidents," as Scalia flippantly disparaged the constitutional provision in the Noel Canning oral argument, the temporary appointment authority remains a capstone to insure the Framers' design of a functioning government through executive appointment discretion.

Judges Should Not Monitor Recess: Noel Canning Presents a Political Question

In the end, however, whether Scalia's Freytag memory serves, and whether the Supreme Court's internal debates move beyond the D.C. Circuit's myopic definition of recess, should not matter, nor should any of the justices' personal opinions be determinative regarding whether the Senate or the president controls when the president makes temporary appointments, nor should the justices' personal views about how short is too short for a Senate break control, for the appointments dispute began as -- and remains -- a partisan fight between factions within the political branches.

As repeatedly argued here, in Jurist, in amicus briefs at the D.C. Circuit and Supreme Court, and most recently in the 2014 Cardozo Law Review article, Noel Canning's challenge to the January 4, 2012, appointments presents a political -- not a legal -- question. The Supreme Court should rule that Noel Canning's challenge to the 2012 appointments is nonjusticiable. Antonin Scalia well knows that the Constitution's Framers never envisioned unelected federal judges as having the final word on political branch fights. Judges should not monitor recess.

Victor Williams is an attorney in Washington D.C. and clinical assistant professor at Catholic University of America School of Law.