About that 9-0 ruling about Obama’s unconstitutional recess appointment
Yesterday, when the news broke, I was a bit, shall we say, blase, about the whole thing — my attitude toward the decision being that it doesn’t much matter, because in our current political climate laws are either ignored, rewritten, or upheld without regard to their constitutionality.
And it turns out that further digging, courtesy of Mark Levin last evening, reveals that the decision, while it acts as a rebuke to Obama in the short term, is actually a weakening of separation of powers, and by a 5-4 majority, with Kennedy crossing over, is a rewriting of the Appointments Clause and Recess Clauses.
Now, this may come as a shock to readers of this site — who are aware of just how fundamentally unserious is my concern with what we claim to be doing when we interpret; and just how pseudo-intellectual is my pontificating on how interpretation works — but the ruling of the majority turned, unsurprisingly, on a rejection of intentionalism and a spurious embrace of textualism.
That is, Justice Breyer took the plain language of the Clause, dismissed the intent behind it, and ruled that what Madison’s notes, along with the actual signified text of the Clause, stated — that the President has the power of appointment during the recess (singular, with a singular article) if a vacancy happens during the recess (which as originally intended and signified meant the time between two Congresses, and with no availability of the Senate to provide advise and consent, given their absence, and given some pressing need to fill a vacancy) — and rewrote it, pointing to that very same plain language and arguing that one can plausibly — or if you prefer, reasonably — read the text in such a way that it encompasses any of a number of intra-congressional recesses, including, say, Christmas breaks. It likewise allows holdover candidates that the Senate didn’t approve to be appointed whenever the Senate is not in session, which means that there really IS no check left on the Executive. There’s just a waiting period before the Executive installs whomever he wishes to install to any appointed position.
Because the Court — with Kennedy joining the leftists — rewrote the Clause and passed it off as interpreting the plain language of the Clause, separation of powers has now been not only weakened, but in this case, essentially destroyed, at least at the level of Constitutionality. Which isn’t to say there aren’t remedies: the Senate, for instance, can in theory, I suppose, refuse to go out of session ever, as they are able to make their own rules concerning how the body runs. But this would mean rotating members in over, say, Holiday breaks or summer recess, which would no longer be a recess at that point. And I’m not sure how likely that is to happen.
The four originalists on the court vehemently dissented on the legal reasoning behind the majority ruling in their concurrence. Correctly, but — given the four lockstep leftists and the one “conservative” who is always ready to swing over — ultimately impotently.
– Which is one of the reasons why I’ve mentioned on several occasions that, to save the republic, one amendment we need is a declaration that originalism — intentionalism — is the single interpretive stance permitted for use by the Court. This removes from judges the arbitrary power to rewrite laws and void the power granted the legislature by the Constitution. Whereas phony textualism gives us entirely new law decided by judicial oligarchy, and often by a single vote of a permanent appointee.
So. The upshot is this: now a President must simply wait for a period of extended intra-congressional recess (whether a 3 day holiday or a 10 day Christmas break, that will be decided later) and appoint whomever he likes, regardless of whether or not his appointee has been previously held up by the Senate. Of course, the smart Executive, knowing that there’s really no need any longer to go through the traditional appointments process, can simply make all appointments recess appointments and do an end run completely around advise and consent.
And all of this, dear, dear remaining readers, is because we have allowed an incoherent mode of “interpretation” to insinuate itself into our epistemology. The rejection of intentionalism in this case — a refusal to acknowledge that the controlling meaning of the plain language of the Clause belongs to those who wrote and passed it, not to contemporary Justices who can argue that, plausibly, it can mean more than what was intended — has created the justification for the very real removal of a basic and crucial check on the power of the Executive branch. It has likewise strengthened judicial power and diminished the role of an increasingly irrelevant Senate and the legislative branch as a whole.
Now, then. Still think all my bloviating about intentionalism and the importance of how we get there matters is “fundamentally unserious” in the rough and tumble world of boots on the ground politics? Or are you ready to paste your own clown nose permanently to your face and regret aiding in the unraveling of our founding documents?
I won’t hold my breath.