Excess of Recess: Grammar, History, and Institutions

A few more comments on the D.C. Circuit’s recess appointments decision and on Mike R’s post/reply to yours truly:

I’d criticized Judge Sentelle’s opinion (not Mike’s article, which I’ve read with great profit but, I admit, some time ago) for “hanging too much” on the word “the” preceding “Recess.” The definite article, the judge insists, very strongly suggests that recess appointments are permissible only between Senate sessions, not during intra-session adjournments or “recesses.”  I didn’t mean that we should ignore (in)definite articles in the Constitution when trying to understand it—to the contrary: the Constitution’s authors are best read as Lillian Hellman in reverse. (“Every word she writes is a lie, including ‘and’ and ‘the,’” Mary McCarthy famously remarked of Hellman.) It’s good to start (at least) with the presumption that every constitutional word is well-considered and meant to be taken seriously.

Still: I’m inclined to stand by my suggestion that Judge Sentelle’s opinion makes too much of the point. It supposes (does it not?) that each Senate has two sessions separated by “the” recess, as has long been our practice. Otherwise, there’d be more than a single recess and the clause would read “a” or “one of the” recess(es). But the Constitution does not require the two-session practice. The Founders had no way of knowing that it would become our practice. And my understanding is that some early Senates actually had three or four sessions. In short, Mike R’s position that the “the” is ambiguous strikes me as more sensible than the court’s opinion.

I also criticized the opinion for upsetting recess appointment arrangements that have been commonly practiced and accepted for very many decades (actually, well over a century). “So what?” asks Mike R. No reliance interests are at stake here; so why not go back? I’m not quite so bold, for two reasons.

First, a longstanding institutional practice will have been examined by tons of very smart lawyers and scholars over the decades, many with great attachment to and understanding of the Constitution. There’s no guarantee that the ongoing constitutional debate always flushes out errors; it may often compound them. But it should take more than a definite article and a few pieces of newly discovered evidence before jumping headlong to the conclusion that everyone over the centuries was wrong, and now we’re right, and away we go. I don’t think Mike R disagrees.

Second, and more important, I do think important interests are at stake (even if I’m not sure I’d characterize them as “reliance” interests). The Constitution sets up rival, competing institutions—and, as a practical matter, compels them to cooperate. Sometimes, it prescribes the mode: bicameral approval, presentment (veto, override).  On a million other things, it does not. When coordination problems prove recurrent, the institutions will work out some mutually acceptable practice. Some practices shift and change over time; others become deeply entrenched. But so long as they work tolerably well and don’t violate the Constitution more or less plainly (and yes, that’s a matter of judgment), it’s rarely a good idea to upset them. The practice serves some institutional function and demand. When it’s  ruled out of bounds the institutions will have to find some other coordination mechanism. That’s always costly. It may be unsuccessful. And it may well be worse than what went before. Before running those risks (in the name of originalism or for other reasons), we should make quite sure that we’ve got it right.

To repeat a point of my earlier post: it was the President who broke with the working recess appointment practice, and the court had good reason to pull him back. The question is whether it was wise to pull harder.  To summarize the point of his post: I’m as much of a formalist as the next guy. I just think formalism has its limits.

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. Before coming to AEI, Professor Greve cofounded and, from 1989 to 2000, directed the Center for Individual Rights, a public interest law firm. He holds a Ph.D. and M.A. in government from Cornell University, and completed his undergraduate studies at the University of Hamburg. Currently, Professor Greve also chairs the board of the Competitive Enterprise Institute and is a frequent contributor to the Liberty Law Blog. Professor Greve has written extensively on many aspects of the American legal system. His publications include numerous law review articles and books, including most recently The Upside-Down Constitution (Harvard University Press, 2012). He has also written The Demise of Environmentalism in American Law (1996); Real Federalism: Why It Matters, How It Could Happen (1999); and Harm-less Lawsuits? What's Wrong With Consumer Class Actions (2005). He is the coeditor, with Richard A. Epstein, of Competition Laws in Conflict: Antitrust Jurisdiction in the Global Economy (2004) and Federal Preemption: States' Powers, National Interests (2007); and, with Michael Zoeller, of Citizenship in America and Europe: Beyond the Nation-State? (2009).

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  1. Philip W says

    When one guy in Mike G., and the next guy is Mike R., then no, it is not true that Mike G. is “as much a formalist as the next guy.”

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