ConstitutionPresident Obama’s January 2012 recess appointments to the National Labor Relations board created a firestorm of controversy and ultimately led to a federal  lawsuit. In April, the U.S. Court of Appeals for the D.C. Circuit ruled the three appointments invalid, meaning the board lacked a quorum to do business. That throws some 600 NLRB decisions made since then into doubt. The case will undoubtedly end up at the Supreme Court.

Ultimately, the question boils down to the meaning of language in the Constitution’s Recess Appointments Clause.

Robert J. Natelson, legal professor and author of The Original Constitution, What it Actually Said and Meant, untangles these issues in an article to be published in Harvard Journal of Law and Public Policy titled The Origins and Meaning of ‘Vacancies that May Happen During the Recess’ in the Constitution’s Recess Appointments Clause.

The abstract describes the scope of the paper.

“There has been longstanding uncertainty about the meaning of ‘the Recess’ and close variants of  ‘Vacancies that may happen’ in the Constitution’s Recess Appointment Clause. This Article finds that both ‘the Recess’ and close variants of ‘Vacancies that may happen’ were standard terms in Founding-Era legislative practice, and appear copiously in legislative records.”

Natelson kicks off  the article by introducing the issues surrounding the case of Noel Canning.

Canning questioned the NLRB’s authority to issue orders on two constitutional grounds. First, he asserted that, “the Board lacked the authority to act for want of a quorum, as three members of a five member Board were never validly appointed, as they took office under putative recess appointments which were made while the Senate was not in recess.” Secondarily, he “asserted the vacancies these 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.”

Natelson goes on to outline the opposing positions taken on the issues controlling the case and discusses the contrasting findings from many differing sources.

“Among commentators, some have supported the opinions dominant among courts and Attorneys General, but most have supported the positions enunciated in Noel Canning,” he wrote. “The leading article on the subject, authored by Professor Michael Rappaport, concluded that, ‘the Recess’ includes only intersession breaks and the vacancy must arise during one of those breaks. In its opinion the appellate court relied heavily on this article.”

But Natelson’s paper focuses on founding-era writings from a pre-ratification constitutional time frame. He concurs with the Court of Appeals and the article authored by his colleague, Professor Rappaport, but his entire approach is to view the issue through the original understanding of the Constitution.

“However, all of this writing suffers from at least one weakness: the failure to marshal a significant amount of evidence arising prior to the Constitution’s ratification,” he wrote. “The disadvantage of omitting pre-ratification material should be obvious. Statements and practices arising after the ratification could not have been part of the original understanding. When post-ratification sources do shed light back into the tunnel of time, that light is usually weak and uncertain.”

Natelson begins his investigation by seeking out pre-ratification sources informing the founders’ understanding of the issue. He points out the framers did not invent the phrases, “the Recess” and “Vacancies that may happen” They were considered stock terms from legislative and government practice. The colonists’ political frame of reference was the British system,  in particular Parliament. Since most of the colonies were formed within the same basic framework, British legislative records serve as a good primary source.

Natelson next focuses in on the meaning of the “session.”

“The key to grasping the meaning of the phrase ‘the Recess’ is understanding how the founding generation understood the concept of a legislative session. The term originates from the Latin word ‘sedere’ or to sit. The British system considered a session of Parliament, ‘the season, or space, from its meeting to its prorogation or dissolution.’  Parliament began as a result of a call from the Crown, and the session began when the legislature undertook a formal act, and ended upon prorogation or dissolution. Prorogation was a procedure in which the King could terminate the session by a writ. Dissolution could be accomplished three ways, 1) the decision of the king, 2)the death of a king, 3) the expiration of the parliaments term of office, Prorogation or Dissolution terminated a session, while adjournment did not. In the colonies, the governor enjoyed the powers of initiating a session of an assembly and ending it with prorogation or dissolution.”

Next up is the phrase “the recess.” In common terms, when recess did not have “the” in front of it, it was considered a retreat, or remission from a procedure.  But those three letters, “the,” gave it a very specific meaning.

“It seems, however, that in government practice the phrase ‘the Recess’ always referred to the gap between sessions.”

He goes into great detail explaining differing clauses and what was or wasn’t allowed during “the Recess.” But the main point remains “the Recess”  was always understood as the gap of time between sessions, not a break within a session.

Finally, he takes on “Vacancies may happen.”

“The Constitution’s expression ‘Vacancies……happen’ was but one variant of a group of stock phrases employed in these provisions,” he wrote, adding that the majority of documents confirmed that “happen” always signified a discrete event. However, when legislators wanted to designate a continuing vacancy, the term “during the vacancy” was generally utilized.

Professor Natelson’s extensive research reveals  that both “the Recess” and similar varieties of “Vacancies that may happen” were standard terms in founding-era legislative use, and appear in many documents and records. These documents and records also advise us that “the Recess” was a term of art which meant the gap of time in-between sessions, and a vacancy “happens” when it first arises.

Most modern constitutional scholars approach the founding document as if it were surrounded by an impenetrable fog and act as if we simply cannot ever determine the original meaning. Natelson’s approach proves them wrong. His exhaustive research and meticulous scholarship pulls the intent of the framers and the understanding of the ratifiers into broad daylight. Madison asserted that the only basis for solid government rested on the original understanding of the Constitution.

“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense!”

Natelson’s work not only vividly illuminates the meaning of the Recess Appointments Clause, it charts the path judges should follow when determining constitutional issues.

The Original Constitution

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Robert G. Natelson, the author of The Original Constitution: What It Actually Said and Meant, is Senior Fellow in Constitutional Jurisprudence at both the Independence Institute in Denver, Colorado and the Montana Policy Institute in Bozeman, Montana. He was a law professor for 25 years, serving at three different universities. His biography and works are listed at http://constitution.i2i.org/about.

View the Noel Canning Court Decision

Vacancies that May Happen During the Recess by Tenth Amendment Center


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