There have been some great posts on the President’s side in anticipation of yesterday’s recess appointments argument (including those I linked to earlier by Eric Posner, Elizabeth Wydra and Sidney Rosdeitcher, plus this one in The Atlantic by Peter Shane). But Monday morning’s post at SCOTUSblog by Carl Cecere is embarrassingly weak: The Original Understanding of the President’s Recess Appointments Clause.
For instance, it has largely assumed by everyone involved in this case, including the D.C. Circuit below, that the Founders viewed the president’s appointment authority with concern and skepticism. The received wisdom seems to be that that the president’s appointment authority was carved up into pieces and parceled out to the Senate in Article II, Section 2 to prevent the president from becoming too powerful. This assumption lies at the heart of the position that the president’s recess appointment power should be interpreted “narrowly” as an exception to the rule that the Founders did not trust the president to make appointments decisions on his own.
But the balance of the Founders’ opinions does not square with this assumption. Yes, as Alexander Hamilton wrote in Federalist 76, it is true that the Founding generation believed it would be unwise to give the appointment authority solely to the President. Involving the Senate was thought to be an “excellent check upon a spirit of favoritism in the President” to prevent “the appointment of unfit characters” owing to their connections or popularity.
But several other Founders also expressed concern that involving the legislative branch in appointments was equally dangerous. William Findley wrote that the process deprived the president, who ought to be “fully and absolutely invested with the executive power,” of the “most important and most influential portion of the executive power, viz. the appointment of all officers.” And the Dissent of the Minority of the Convention noted that it violated the opinion of the “elevated Montesque” that there should not be a blending of the executive and legislative functions.
So Cecere thinks that the “balance of the Founders’ opinions” (whatever that means) is demonstrated by William Findley (who, Cecere does not tell us, was a leading Pennsylvania anti-federalist) and the Dissent of the Minority (at, Cecere does not tell us, the Pennsylvania ratifying convention, and which Findley signed). [I am not selectively editing here: these are the only sources Cecere cites to support his proposition].
But these closely-related sources at best prove that some antifederalists in Pennsylvania thought the Constitution mis-allocated the power to appoint executive officers. If anything, this tends to confirm Hamilton’s description of the Constitution’s division of appointment power. Findley wasn’t saying the Constitution didn’t divide appointment power between the executive and Senate; he was saying it shouldn’t. And in any event, Findley’s side lost.
It’s also worth noting, as Cecere doesn’t, that Findley and his fellow Pennsylvania dissenters didn’t want unchecked executive appointments power. Indeed, most of the dissenters, including Findley, were supporters of the 1776 Pennsylvania constitution that radically restricted and divided executive power. The dissent argued:
Instead of this dangerous and improper mixture of the executive with the legislative and judicial, the supreme executive powers ought to have been placed in the president, with a small independent council, made personally responsible for every appointment to office, or other act, by having their opinions recorded; and that without the concurrence of the majority of the quorum of this council, the president should not be capable of taking any step.
Thus the dissent’s point wasn’t that the President should have unchecked appointments power; it was that the check should come from an independent council rather than from the Senate (a point the drafting convention had considered and rejected).
To be sure, antifederalist arguments can be useful in establishing original meaning – especially in construing the Bill of Rights, which was significantly inspired by the antifederalists, but also in showing how the Constitution’s opponents read its language. But Findley and his fellow dissenters were not saying anything here inconsistent with Hamilton’s reading of the text, and they weren’t saying anything at all about the recess appointments clause.
Cecere also argues:
While two of the leading lights of the Founding generation, Alexander Hamilton and Edmund Randolph — in his position as Attorney General of the United States — opined that the president could only use recess appointments to fill vacancies that arose during the recess, two others — Jefferson and Adams — found the issue too difficult to decide for themselves, and yet several others, including George Washington, John Adams, and Madison, flouted the Randolph position outright in their recess appointments.
Cecere does not give any examples of the particular recess appointments he has in mind. As far as I know, no one has shown that either Washington or Adams made recess appointments inconsistent with the Hamilton/Randolph view. Adams thought about it, but Hamilton and Secretary of War McHenry apparently talked him out of it on constitutional grounds. In the Noel Canning case, the government claims that Washington made two inconsistent appointments, but our brief shows they probably were not inconsistent, and moreover Washington claimed he was acting consistently with Randolph’s view, whatever the actual facts (see pp. 21-22 of the brief). None of the Presidents Cecere mentions publicly claimed a broader recess appointments power.
If Cecere has some new evidence, I would very much like to hear it. He invokes a report prepared by some law students, which by the look of it (I have not had a chance to review it completely) has a lot of interesting references but nothing new of great direct significance. If this essay is the best he can come up with, I doubt there are any surprises in the report.
I think it is not surprising that the leading current commentaries supporting the President — including the four mentioned above — focus on modern needs or on practice long after ratification. The founding-era meaning is clear and straightforward. Cecere’s weak attempt to show otherwise actually confirms it.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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