How outraged should Democrats be about Friday's ruling in Canning v. NLRB? Quite a bit, I think, but it's not entirely clear to me that the ire should be directed entirely (or even mostly) at the DC Circuit panel that decided the case. Oh sure, it's easy to call the Republican appointees hypocrites or hacks, as the inimitable Charlie Pierce does over at Esquire. And maybe he has a point. Just as it was awfully suspicious that five conservatives discovered equal protection and renounced states' rights in Bush v. Gore, so too, one might be inclined to raise an eyebrow or two about the fact that a conservative panel waited for a Democratic Presidency to invalidate nearly all recess appointments. But even if there's more than a kernel of truth in such accusations, one can find a fair number of corresponding suspiciously timed Democratic flip-flops and more to the point, being a hypocrite or a hack doesn't necessarily make you wrong.
So, is the ruling in Canning wrong? A year ago, I wrote that the constitutional scope of the President's recess appointment power presents a hard question. That's especially true when the Senate is in pro forma session because a constitutional rule that pro forma sessions count as recesses requires a difficult line-drawing exercise. Moreover, given the need for the cooperation of the House of Representatives in formally adjourning, there is a political check on the power of the Senate to keep itself in session as a means of frustrating a President's recess appointment power. Were it not for Republican control of the House, the Senate Dems could have formally adjourned the Senate with only a simple majority.
That political fact counts for a lot but not everything because of the breadth of the DC Circuit opinion in Canning. It doesn't just say that pro forma sessions aren't recesses. It says that intra-session adjournments aren't recesses. Can that be right?
If I were starting from first principles, I might well agree with the DC Circuit. The Senate's power to confirm principal officers is a check on executive administration, while the power of the President to make recess appointments appears to be a kind of emergency gap-filler. At its core, the DC Circuit opinion in Canning makes that point. In cabining the recess appointment power, it says that a constitutional gap-filler should not be used to circumvent a legislative check on executive administration.
I nonetheless think the DC Circuit may have gotten it wrong because we are not starting from first principles. Perhaps Judge Sentelle ends up with the wrong answer because he begins with the wrong question. He begins his constitutional analysis by quoting the Supreme Court's opinion in DC v. Heller for the proposition that a constitutional provision should be construed by "look[ing] to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution." It's true that the Court in Heller said that, but there is so much nonoriginalist jurisprudence that has emanated from the Supreme Court--including from the Justices in the majority in Heller--that one simply cannot take seriously the idea that Heller established originalism as the official methodology of constitutional law.
Indeed, even in Heller, the Court gave extensive consideration to post-1791 evidence of the meaning and proper construction of the Second Amendment. And despite its originalist cant, so does the DC Circuit in Canning. The problem is what the court does with that evidence. The DC Circuit finds virtually no instances of intra-session recess appointments before World War II and discounts their extensive use since then. Was that discarding appropriate?
The DC Circuit cites the legislative veto case, INS v. Chadha, for the proposition that even a practice that has gained wide currency will be held invalid if it contradicts the Constitution's plain language. That's fair enough. Congress had come to insert legislative vetoes in numerous laws and the Court nonetheless found it inconsistent with Article I, Section 7. But Chadha surely doesn't stand for the proposition that the experience of the political branches counts for nothing at all. Amidst the DC Circuit's excessive reliance on the Framers in Canning, the court loses track of an important principle traceable to Hamilton in Federalist No. 82:
THE erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety; and these may, in a particular manner, be expected to flow from the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties. 'Tis time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE.Hamilton's immediate concern was federalism but his point is broader: the Framers didn't know how the Constitution would work in practice. Experience under the Constitution "liquidate[s]" its "meaning." Of course, Judge Sentelle et al are right that experience can't change the meaning of language that was and remains clear, but forgive me if I think there's ambiguity in the key words on which his opinion relies: "the" and "happen". Reading the Canning opinion, one wonders whether the DC Circuit means to render respectable former President Clinton's parsing of the meaning of "is".
None of this would matter much were it not for the filibuster. What makes the Canning opinion so deadly is the fact that it doesn't protect a legislative check on the executive; it enables a determined blocking minority in the Senate to frustrate not only the President but the majority of the country. And that, of course, is exactly what's going on here. Were it not for the filibuster and other super-majoritarian procedures in the Senate, the Democratic majority would simply confirm President Obama's nominees. The President has only had to resort to recess appointments in the first place because of the Republican blocking minority's obstinacy. Yet the Canning opinion makes no mention of filibusters or the cloture rule.
Of course, once we come to see the filibuster as the root of the problem, it's hard not to shift the blame from the DC Circuit to the Senate itself, and in particular, to the Democratic leadership. By coincidence, the Canning decision was handed down the same day that Harry Reid and Mitch McConnell cut a deal for "filibuster reform" that largely leaves the filibuster intact. It's possible to read this deal as typical Democratic Party spinelessness, but I also suspect that a fair number of Dems wanted to preserve the filibuster for some future time when they find themselves in the Senate minority. There's nothing in the deal that can or will prevent the future Republican majority from eliminating the filibuster when that day arrives, so if this was in fact the thinking of the Senate Dems, time will tell whether they misplaced their faith in the power of long-run reciprocity.
Even if reciprocity holds over the long run, however, ending the filibuster would have likely been a net benefit to Democrats. Let's say that the legislative filibuster is a wash: A Democratic blocking minority in the Senate would be roughly as likely to want to stop some legislation by a Republican president as a Republican blocking minority in the Senate would want to stop some legislation by a Democratic president. Ditto for judicial appointments, where each side has as much to gain from blocking the others' appointments as it has to lose from having its own appointments blocked. Even so, the filibuster appears to be a net gain for the Republicans on executive appointments. Why? Because, other things being equal, Democratic administrations want federal agencies to do things whereas Republican administrations, being more hostile to regulation, are fairly content to have their agencies do nothing. So, if filibustering appointments is a means to block agencies from doing things, then it is a tool that on net benefits Republicans, not Democrats.
That calculus changes if one thinks that over the long run, Democrats are more likely to be in the minority in the Senate or that that Republicans are more likely to hold the presidency. Perhaps Sen. Reid fears the latter based on reports of Republican state-level efforts to gerrymander the allocation of electoral votes. If so, I sure hope he has a plan for directly combating those efforts.