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Old 01-29-2013, 08:23 AM   #84
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Court Originalists Upend Power Balance With Recess Ruling
By Noah Feldman
Jan 28, 2013 11:41 AM CT

If it was good enough for James Madison, it’s good enough for me -- that was the message of the U.S. Court of Appeals in Washington when it struck down the president’s power to appoint officials when Congress isn’t doing business but is nominally in session.

Relying on the language of the Constitution, and what it took to be the original intention of the Founding Fathers, the three-member court panel struck down a practice that by some estimates goes back to 1867. The decision involved appointments to the National Labor Relations Board, but the impact will be felt throughout government. Hundreds, perhaps thousands of executive branch actions will be thrown into question retroactively.

With the greatest respect to Madison and his peers, this makes no sense -- or at least no sense in a world that differs from that of 1789. The problem isn’t really that from now on, the president will have to put up all his nominees for Senate confirmation unless it is during the official recess that usually takes place over the summer. In principle, that would be a reasonable thing for him to have to do, and it is entirely possible that the court got the original meaning right.

Bigger Government

The problem is that in every other respect, including the confirmation process, today’s government is totally different from the world the constitutional framers imagined. Start with its size. When Thomas Jefferson took office in 1801, a dozen years into the history of the Constitution in action, he had a grand total of four full-time Cabinet officials: the secretaries of state, war, the Treasury and the Navy. The attorney general was a part-time lawyer who kept his private clients. There were no assistant secretaries, to say nothing of deputies, deputy assistants and beyond. Senate confirmation was a matter of a few discussions among a handful of men.

All this has been altered radically as government has grown. The increase in the number of confirmed officials came both in slow increments, with the growth of individual jobs within the executive branch in the 19th century, and in major leaps, as in the New Deal, when agencies proliferated. Today, confirming appointees takes forever. If recess appointments can’t fill jobs during the backlog period, then much of the executive branch will teeter along, rudderless. This might please small-government advocates, but even they presumably would like to see the Defense Department, say, fully operational.

Size isn’t the only issue. In Jefferson’s world, when senators got down to business, they would either confirm the president’s nominee or reject him (always “him” until Franklin D. Roosevelt nominated Frances Perkins as labor secretary). In the contemporary world, however, an innovation totally incompatible with original intent has changed that: I speak, of course, of the dreaded filibuster.

The filibuster has a dirty history and a disreputable present. Deployed most often to protect slavery and segregation, it enables a minority of the Senate to block an appointment without compunction. Filibusters, or just the threat of them, have for many years been applied most often to block appointments.

Undemocratic Filibuster

There is nothing unconstitutional about this -- unless you are an originalist. The Senate makes its own rules, and if it wants a rule that breaks majority vote, so be it. But the Founding Fathers never dreamed of it. It is, arguably, a violation of their aspiration to a republican form of government. It is certainly undemocratic.

In a sense, recess appointments functioned as compensation to the executive branch for its inability to get an up-or-down vote on its nominees. There was a certain push and pull -- if the Senate blocked a nominee, the president could give that person a recess appointment. Taken together, the system gave each side incentives to compromise. Even if they couldn’t, each walked away with something.

Now the U.S. Court of Appeals for the District of Columbia Circuit has upset this balance in favor of the minority party in the Senate. Its motives may be totally pure, but the effects of the decision are decidedly partisan.

And the true culprit isn’t the three-judge panel -- all of whom happened to have been appointed by Republican presidents -- but the theory of originalism itself. Justice Oliver Wendell Holmes put it best (as he usually did). The words of the Constitution, he wrote, “have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.”

The Constitution has evolved as the country has changed. The trouble with applying strict originalism to one bit of the evolving structure is that it doesn’t take into account the other changes. Had we never developed recess appointments of the modern type, that might have been fine. Yet they came about as part of an overall structure of balance between the branches, and eliminating them makes those powers less balanced, not more.

The NLRB itself would have been unimaginable to the framers. How does Congress’s power to regulate interstate commerce evolve into a body that can determine labor-capital relations and control unions and employers alike? By necessity, that’s how.

If we have today a constitutional system that is the envy of the world, it is emphatically not because of the original text, however elegant. It is because we have had the wisdom over the generations to let our magnificent structure evolve to meet new needs and circumstances.
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