In response to the institutional inertia of the Senate, President
Obama made three "recess" appointments to the National Labor Relations
Board between January 3 and January 23, 2012, at a time when the Senate
was not formally in session, so that a quorum of the five-member board
could be created to adjudicate labor disputes.
In a subsequent challenge to President Obama's action, the Court of Appeals for the District of Columbia, in Canning v. NLRB,
No. 12-1115 (D.C. App.Ct., January 25, 2013), has invalidated those
"recess" appointments and called into question the constitutionality of
all such past appointments. The court's sweeping decision raises of
specter of a kind of Orwellian judicial "newspeak" since the panel's
holding was predicated entirely upon the narrow understanding that the
three judges gave to the meaning of one noun and a verb as those two
words were used in the eighteenth century. How severely that court's
decision, if not reversed, will further impair the ability of the United
States government to function in the twenty-first century remains an
open question.
The case arose after Noel Canning, a bottler
for Pepsi Cola, challenged an order by the National Relations Labor
Board. After an administrative hearing, the NLRB cited it for an unfair
labor practice and directed it to honor the terms of a Collective
Bargaining Agreement that it had negotiated with the Teamsters Union,
but subsequently declined to implement.
In its appeal from
the decision of the NLRB to the Court of Appeals, Canning argued that
the Board did not properly follow applicable contract law in determining
that an agreement had been reached and that, as a consequence, the
finding of unfair labor practice was erroneous. The three judge panel
rejected Canning's argument and found, based upon a "sufficiency of the
evidence " standard, that the decision of the administrative judge below
was correct and that the terms of the collective bargaining agreement
were enforceable, as the NLRB had correctly found.
But
Canning also argued for the first time in its appeal that the NLRB
lacked the authority to issue any orders " for want of a quorum, as
three members of the five-member Board were never validly appointed
because they took office under putative recess appointments which were
made when the Senate was not in Recess." Canning, at 3.
Further, Canning asserted that the "vacancies the three members
purportedly filled did not 'happen during the Recess of the Senate,' as
required for recess appointments by the Constitution. U.S. Const. Art
II, §2, cl.3." Canning, at 3, 4.
In an unabashed
display of judicial activism, the three judges on the panel (all of whom
were appointed by Republican Presidents and have established
track-record as right-wing jurists), David Sennelle, Karen Henderson and
Thomas Griffith, agreed with Canning. The judges denied that the three
recess appointments that President Obama made to National Labor
Relations Board were valid because they found that the Senate was not
actually in recess, despite the fact that, during the interval between
January 3, 2012 and January 23, 2012, almost all of the Senators were
absent from Washington, and only pro forma sessions were convened by
one Senator every three business days.
In its decision, the
Court of Appeals noted that "...there is a serious argument to be made
against our having jurisdiction over the constitutional issues. Section
10(e) of the NLRA, governing judicial review of the Board's judgments
and petitions for enforcement, provides: 'No objection that has not been
urged before the Board ... shall be considered by the court, unless the
failure or neglect to urge such objection shall be excused because of
extraordinary circumstances.' 29 U.S.C. § 160(e). The record reflects no
attempt by petitioner to raise the threshold issues related to the
recess appointments before the Board. Our first question, then, is
whether this failure to urge the objection before the Board comes within
the exception for 'extraordinary circumstances.' Canning, at 10.
Not unexpectedly, the three judge panel answered that question in the
affirmative, given their well-known personal penchants for
result-oriented adjudication: "We hold that it does," notwithstanding
the fact that"We acknowledge that no governing precedent directly
addresses this question." Canning, at 10.
Equally
disturbing, the three judge panel expressly rejected contrary decisions
reached by other federal courts, including Evans v. Stephens,
387 F. 3d 1220 (11th Cir.,2004). Those earlier decisions affirmed the
constitutional validity of presidential recess appointments.
The appeals court also chose to ignore a long-standing principle that
counseled for judicial restraint when ruling upon constitutional issues:
"The Judicial Branch is the controlling interpreter of how the
Constitution applies. But the President, in his capacity as chief
executive of this country, is also sworn to uphold the Constitution. And
when the President is acting under the color of express authority of
the United States Constitution, we start with a presumption that his
acts are constitutional. See United States v. Allocco, 305 F.2d 704, 713 (2d Cir.1962) (Recess Appointments Clause case); see also U.S. v. Nixon,
418 U.S. 683, 94 S.Ct. 3090, 3105, 41 L.Ed.2d 1039 (1974) (observing
'In the performance of assigned constitutional duties each branch of
the Government must initially interpret the Constitution, and the
interpretation of its powers by any branch is due great respect from the
others.'). To be sure, the presumption is a rebuttable one; but the
burden is on the challengers to overcome it with their arguments and to
persuade us to the contrary. Just to show that plausible interpretations
of the pertinent constitutional clause exist other than that advanced
by the President is not enough. We are not persuaded that the President
acted beyond his authority in this case: both the words of the
Constitution and the history of the nation support the President's
authority" Evans, at 1222.
In Canning,
the appeals court, after invoking the legal fiction of "original
intent," insisted that there was only one possible meaning to the noun
"Recess" as that word appears in Article II, §2, cl.3 of the
Constitution: "It is this difference between the word choice 'recess'
and 'the Recess' that first draws our attention. When interpreting a
constitutional provision, we must look to the natural meaning of the
text as it would have been understood at the time of the ratification of
the Constitution. District of Columbia v. Heller, 128 S. Ct.
2783, 2788 (2008). Then, as now, the word 'the' was and is a definite
article. See 2 Samuel Johnson, A Dictionary of the English Languag0 2041
(1755)(defining 'the' as an 'article noting a particular thing'
(emphasis added)). Unlike 'a' or 'an,' that definite article suggests
specificity. As a matter of cold, unadorned logic, it makes no sense to
adopt the Board's proposition that when the Framers said 'the Recess,'
what they really meant was 'a recess.' This is not an insignificant
distinction. In the end it makes all the difference." Canning, at 17.
Further, the court opined, "Six times the Constitution uses some form
of the verb 'adjourn' or the noun 'adjournment' to refer to breaks in
the proceedings of one or both Houses of Congress. Twice, it uses the
term ' the Recess': once in the Recess Appointments Clause and once in
the Senate Vacancies Clause, U.S. Const. art. I, § 3, cl. 2. Not only
did the Framers use a different word, but none of the 'adjournment'
usages is preceded by the definite article. All this points to the
inescapable conclusion that the Framers intended something specific by
the term 'the Recess,' and that it was something different than a
generic break in proceedings." Canning, at 17.
As a matter of simple logic, the court argued that, "The structure of the Clause is to the same effect. The Clause sets a time limit on recess appointments by providing that those commissions shall expire 'at the End of their [the Senate's] next Session.' Again, the Framers have created a dichotomy. The appointment may be made in 'the Recess,' but it ends at the end of the next 'Session.' The natural interpretation of the Clause is that the Constitution is noting a difference between 'the Recess' and the 'Session.' Either the Senate is in session, or it is in the recess. If it has broken for three days within an ongoing session, it is not in 'the Recess.'" Canning, at 17-18.
The
three judges also insisted that, at the time the Constitution was
drafted 1787, there was only one possible definition of the meaning of
the noun "Recess"as modified by a definite article, "the," and that they
knew, for certain, the precise meaning that the Founders intended. The
court thus engaged in a feat of legerdemain and disregarded all
contrary definitions of "Recess' that contemporary dictionaries showed
the Founders would have also understood the noun to mean. For example,
the Evans Court noted that "The dictionary definitions that
have been called to our attention (or that we have found) did not, for
example, speak of a minimum time. See, e.g., A Dictionary of the English
Language (1755) (reprinted 1967) (defining 'recess' as 'retirement;
retreat; withdrawing; secession' or 'remission and suspension of any
procedure'). And the text of the Constitution does not differentiate
expressly between inter- and intrasession recesses for the Recess
Appointments Clause." Evans, at 1224.
Nevertheless,
the D.C. Court of Appeals concluded: "In short, we hold that 'the
Recess' is limited to intersession recesses. The Board conceded at oral
argument that the appointments at issue were not made during the
intersession recess: the President made his three appointments to the
Board on January 4, 2012, after Congress began a new session on January 3
and while that new session continued. 158 Cong. Rec.S1 (daily ed. Jan.
3, 2012). Considering the text, history, and structure of the
Constitution, these appointments were invalid from their inception.
Because the Board lacked a quorum of three members when it issued its
decision in this case on February 8, 2012, its decision must be vacated.
See 29 U.S.C. § 153(b); New Process Steel, 130 S. Ct. at 2644-45." Canning, at 30.
After the panel successfully imposed a judicial imprimatur upon its own definition of the noun "Recess," the three judges next turned their attention to the meaning of the verb "happen" as that verb appears in the recess appointments provision. " Upon a simple reading of the language itself, we conclude that the word 'happen"'could not logically have encompassed any vacancies that happened to exist during 'the Recess.'" Canning, at 31.
"For our logical analysis of the language with respect to the meaning of 'happen' to be controlling, we must establish that it is consistent with the understanding of the word contemporaneous with the ratification. Dictionaries at the time of the Constitution defined 'happen' as '[t]o fall out; to chance; to come to pass.'1 Johnson, supra, at 965; see also Evans, 387 F.3d at 1230 & n.4 (Barkett, J., dissenting) (surveying a variety of eighteenth-century dictionaries and concluding that they all defined 'happen' similarly). A vacancy happens, or 'come[s] to pass,' only when it first arises, demonstrating that the Recess Appointments Clause requires that the relevant vacancy arise during the recess. The term 'happen' connotes an event taking place -- an action -- and it would be plainly incorrect to say that an event happened during some period of time when in fact it happened before that time." Canning, at 31.
Hence, the court concluded, "In light of the extensive evidence that the original public meaning of 'happen' was 'arise,' we hold that the President may only make recess appointments to fill vacancies that arise during the recess." Canning, at 39.
Despite its assurance
that the verb "happen" could only be understood as a synonym for the
verb "arise," the D.C. Court of Appeals committed an assault and battery
upon the Englsih language as it intentionally chose to disregard other
well-established 18th century understandings of the verb "happen." For
example, the NLRB and the Department of Justice, in their reply brief,
emphasized that "As explained almost hundred years ago, the term
'happen''does not undisputedly mean, as the Company suggests, 'happen to
occur'; it "may mean, also . . .'happen to exist.'" 1 Op. Att'y Gen.
631, 632 (1823). When 'determining the true construction of a
constitutional provision the phraseology of which is in any respect of
doubtful meaning,' courts look to "[l]ong settled and established
practice" as a "consideration of great weight in a proper
interpretation" of the Constitution's text. The Pocket Veto Case, 279 U.S. at 688-90 (internal quotation marks omitted)."(NLRB's Reply Brief, at 66).
The three judges in this case, despite their claim of fidelity to the contemporary meaning of words, also ignored the etymology of the verb happen: "c.1300, 'to come to pass, occur,' originally 'occur by hap, to have the (good or bad) fortune (to do, be, etc.);' see hap (n.). Replaced Old English gelimpan, gesceon, and Middle English befall. In Middle English fel it hap meant 'it happened.' Related: Happened; happening." OnLine Etymology Dictionary.
The pronunciamentos of the three appeals court judges regarding the precise meaning of words are little different from the entreaties of Christian fundamentalist preachers who insist upon a literal interpretation of the bible. The judges' convictions that the precise and unambiguous meaning of words in the text of the constitution -as they were understood by the Founders at the time the document was drafted - must alone control, and that all ambiguities, inferences and subsequent evolutions in the meaning of words must be disregarded, is a theological, rather an a legal proposition.
As applied, the judicial doctrine of
"original intent" imposes the dead hand of the past upon the present;
reduces the constitution to a desiccated, no longer relevant document; and
perverts constitutional analysis into an exercise in exegesis.
Toward the end of its decision, the panel piously invoked the words of Chief Justice John Marshall in Marbury v. Madison:
"As we recalled in our analysis of the first issue, '[i]t is
emphatically the province and duty of the judicial department to say
what the law is. Those who apply the rule to particular cases, must of
necessity expound and interpret that rule.' Marbury, 5 U.S. (1 Cranch) at 177." Canning, at 37.
Ironically, the advocates of strict construction and constitutional
literalism fail to comprehend that their fidelity to the doctrine of
original intent may also be the cause of their undoing. In their zeal to
find new tools to diminish the ability of the government to act on
behalf of the public interest, they overlook one obvious but fatal flaw
in their view of what the Constitution explicitly authorizes: John
Marshall's decision in Marbury v. Madison notwithstanding,
there is no language that can be found anywhere in the text of the
United States Constitution that expressly suggests or permits the
Supreme Court or any judges of the United States to pass upon the
constitutionality of statutes enacted into law by the Congress or to
declare the acts of the chief executive unconstitutional.
Although Alexander Hamilton in Federalist No.81
may have intimated that such a power might be a necessary extension of
the Supreme Court's jurisdiction to enforce Article VI of the
Constitution, the Supremacy Clause, that is incredibly fragile
scaffolding upon which to build an entire school of aggressive, arrogant
jurisprudence that is determined to reign in the powers of the federal
government.
The lack of explicit textual authority in the
constitution that would support the kind of judicial overreach in which
the appeals court in Canning engaged should prompt the Court of
Appeals and the five right-wing jurists on the Supreme Court to ponder
the words allegedly attributed to Andrew Jackson in response to the
Supreme Court's decision in Worcester v. Georgia, 31 US 515 (1832), "John Marshall has made his decision, now let him enforce it!"
