Evans v. Stephens

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
--------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-16424
October 14, 2004
--------------------------------- THOMAS K. KAHN
D. C. Docket No. 01-00009-CV-JTC-3 CLERK

PETER EVANS,
DETREE JORDAN,
Plaintiffs-Appellees,

versus

DENIS STEPHENS,

Defendant-Appellant,

UNITED STATES OF AMERICA,

Intervenor.

--------------------------------
Appeal from the United States District Court
for the Northern District of Georgia
---------------------------------
(October 14, 2004)

Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH,
DUBINA, BLACK, CARNES,* BARKETT, HULL, MARCUS, WILSON and
PRYOR,* Circuit Judges.
_____________________

* Judge Carnes and Judge Pryor, having recused themselves on the question of Judge
Pryor’s appointment, did not participate in the consideration or decision of the motion to
disqualify Judge Pryor.
O R D E R:

Between the twelfth and twenty-third of February 2004, the United States

Senate took a break in their Session. 150 Cong. Rec. S1414-04 (daily ed.

Feb. 12, 2004) (statement of Sen. Frist) (“I wish everyone a safe President’s Day

recess”); 150 Cong. Rec. S1415-02 (daily ed. Feb. 12, 2004) (statement of Sen.

Frist) (“the Senate, at 8:49 p.m., adjourned until Monday, February 23, 2004”).

During that break, on 20 February 2004, the President appointed William H. Pryor

Jr. to the Eleventh Circuit Court of Appeals. The President relied on the Recess

Appointments Clause. U.S. Const. art. II, § 2, cl. 3. In this case, plaintiff-

appellees by a timely written motion challenge the authority of Judge Pryor to act

as a United States Circuit Judge.1 We conclude that the President’s appointment

1
We do not view the question of the constitutionality of Judge Pryor’s appointment as
affecting jurisdiction and, thus, requiring this Court to act sua sponte. We have rejected the
argument that the Supreme Court’s recent decision in Nguyen v. United States, 123 S.Ct. 2130
(2003), directs us to view this challenge to Judge Pryor’s appointment as jurisdictional. There,
the Supreme Court merely exercised its power to correct a statutory violation by the Ninth
Circuit when the Circuit Court allowed a non-Article III judge to sit on a three-judge panel. The
Court granted the litigant permission to appeal the issue (which had not been raised in earlier
proceedings) based on its Rule 10(a) “supervisory power,” not because the Court considered the
issue as jurisdictional.
In addition, the Supreme Court’s decision in Freytag v. Commissioner of Internal
Revenue, 111 S.Ct. 2631 (1991), characterized Recess Appointments Clause objections as
“nonjurisdictional structural constitutional objections.” Id. at 2639 (viewing whether to address
such a structural constitutional objection, despite the litigant’s failure to raise the issue in lower
court proceedings, as being within the Court’s discretion).
This motion is the first instance -- that was both timely and ripe -- in which a party
objected, on account of Judge Pryor’s recess appointment, to his taking part in a decision as a
judge of this Court.

2
was not beyond his constitutional power.

The Judicial Branch is the controlling interpreter of how the Constitution

applies. But the President, in his capacity as chief executive of this country, is

also sworn to uphold the Constitution. And when the President is acting under the

color of express authority of the United States Constitution, we start with a

presumption that his acts are constitutional.2 See United States v. Allocco, 305

F.2d 704, 713 (2d Cir. 1962) (Recess Appointments Clause case); see also U.S. v.

Nixon, 94 S.Ct. 3090, 3105 (1974) (observing “In the performance of assigned

constitutional duties each branch of the Government must initially interpret the

Constitution, and the interpretation of its powers by any branch is due great

respect from the others.”). To be sure, the presumption is a rebuttable one; but the

burden is on the challengers to overcome it with their arguments and to persuade

us to the contrary. Just to show that plausible interpretations of the pertinent

constitutional clause exist other than that advanced by the President is not enough.

We are not persuaded that the President acted beyond his authority in this

case: both the words of the Constitution and the history of the nation support the

President’s authority.

2
We do not have before us and do not address a circumstance in which the Senate, itself,
is a litigant challenging a President’s act. One distinguished member of the Senate, Senator
Kennedy, is acting as amicus curiae, supporting plaintiff-appellees’ challenge of Judge Pryor.

3
 Recess Appointments to Article III Courts are Allowed

We focus mainly on what the Constitution says and does not say. The text

of the United States Constitution authorizes recess appointments of judges to

Article III courts.3 Article II, Section 2, Clause 3 of the United States Constitution

specifically says “The President shall have Power to fill up all Vacancies that may

happen during the Recess of the Senate, by granting Commissions which shall

expire at the End of their next Session.” The term “Vacancies” refers to the offices

listed in the preceding clause: “Ambassadors, other public Ministers and Consuls,

Judges of the supreme Court, and all other Officers of the United States, whose

Appointments are not herein otherwise provided for, and which shall be

established by Law.” In other words, Clause 2 explains the appointments the

3
The sequence of the relevant clauses is important. The pertinent text of Article II,
Section 2, Clauses 2 and 3 reads this way:

“[The President] shall nominate, and by and with the Advice and Consent of the Senate,
shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme
Court, and all other Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall be established by Law . . . .”
U.S. Const. art. II, § 2, cl. 2.
“The President shall have Power to fill up all Vacancies that may happen during the
Recess of the Senate, by granting Commissions which shall expire at the End of their next
Session.”
U.S. Const. art. II, § 2, cl. 3. (emphasis added).

4
President may make with Senate advice and consent; Clause 3 explains the

President may make temporary appointments to “all” of these offices without

Senate advice and consent. Recess appointments to the judiciary are allowed: one

of the offices specifically mentioned is “Judges of the supreme Court.”

Appointments of United States Circuit Judges are covered. See The Federalist No.

78, at 522 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (noting that judges

are to be appointed in the same manner as executive officers: “the officers of the

union in general . . .”); The Federalist No. 67, at 455 (Alexander Hamilton) (Jacob

E. Cooke ed., 1961) (noting that the term “Vacancies” must “be construed to relate

to the ‘officers’ described in the preceding [clause]”).

History unites with our reading to support our conclusion. As we

understand it, beginning with President Washington, over 300 recess appointments

to the federal judiciary (including fifteen to the Supreme Court) have been made.

Historical evidence of this practice alone might not make the recess appointment

constitutional, but this historical practice -- looked at in the light of the text of the

Constitution -- supports our conclusion in favor of the constitutionality of recess

appointments to the federal judiciary. See generally Marsh v. Chambers, 103 S.Ct.

3330, 3335 (1983) (observing that historical practice of Framers “sheds light” on

the intended meaning of constitutional provisions).

5
 Although we see some tension between Article III and the recess

appointment of judges to Article III courts, we reject the argument that the

language in Article III, saying that judges serve during “good Behaviour” and

without a diminished salary, somehow trumps the Recess Appointments Clause.

The conflict between these equally important constitutional provisions is not

irreconcilable: the temporary judges appointed under the Recess Appointments

Clause are an exception to the general rule of Article III. The text of the Recess

Appointments Clause refers specifically to “all” vacancies: we accept that the

Clause does not leave out Article III judicial vacancies.4

The Constitution, on its face, neither distinguishes nor limits the powers that

a recess appointee may exercise while in office. That is, during the limited term in

which a recess appointee serves, the appointee is afforded the full extent of

authority commensurate with that office. For those who fear judicial recess

appointments because the appointments bypass the Senate completely, we stress

the obvious: the temporary judges lose their offices at the end of the Senate’s next

Session.

4
There are (and always have been) few Article III judgeships for the whole country.
Therefore, because an Article III judge’s power cannot be delegated to other people in the way
most powers of executive branch officers can be, judicial vacancies are especially hurtful to the
judicial branch and, in turn, to its ability to serve the nation and its people. That the Framers
would have been as concerned with keeping judicial offices filled as keeping executive offices
filled makes sense.

6
 We accept that it was the intent of the Framers to keep important offices

filled and government functioning.5 And while recess appointees may not have

every bit of the protection for their independence that regularly confirmed Article

III judges have, we accept the Framers thought that what might be intolerable, if

prolonged, was acceptable for a relatively short while.6 And, of course, plenty of

the judges in this country (for example, state judges) then and now do not have all

the protection of Article III judges; yet these courts are not seen to be inherently

unfair, and the litigants who appear before them have not been held to have been

denied due process on that account. So, we can readily accept that the Framers

would tolerate, on a temporary basis, some federal judges who lacked Article III

protection.

The Second and Ninth Circuits, in reasoned opinions, have also decided that

the Recess Appointments Clause reaches appointments to Article III courts.

United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) (en banc); United States

5
For example, Alexander Hamilton described the Recess Appointments Clause as
“establishing an auxiliary method of appointment in cases, to which the general method was
inadequate.” The Federalist No. 67, at 455 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
Sometimes, filling a vacancy should not be put off. As Hamilton wrote, “it might be necessary
for the public service [for the President] to fill [vacancies] without delay.” Id.
6
To our knowledge, Congress has never attempted to diminish the pay of a recess-
appointment judge while he was in office. Whether such an attempt would be constitutional is
itself an open question.

7
v. Allocco, 305 F.2d 704 (2d Cir. 1962).

“The Recess of the Senate” Includes an Intrasession Recess

Focusing first on the language of the Constitution, and then on the nation’s

history and on the purpose of the Recess Appointments Clause, we also conclude

that President Bush appointed Judge Pryor during a legitimate Senate recess, that

is, during a “Recess” within the meaning of the Recess Appointments Clause. In

this case, the Senate’s break fits the definition of “recess” in use when the

Constitution was ratified: the dictionary definitions that have been called to our

attention (or that we have found) did not, for example, speak of a minimum time.

See, e.g., A Dictionary of the English Language (1755) (reprinted 1967) (defining

“recess” as “retirement; retreat; withdrawing; secession” or “remission and

suspension of any procedure”). And the text of the Constitution does not

differentiate expressly between inter- and intrasession recesses for the Recess

Appointments Clause.

The challengers have used both history and textual analysis to support their

contentions that the ten- or eleven-day break in the Senate’s Session that underlies

Judge Pryor’s appointment was not a “Recess” within the meaning of the Recess

8
Appointments Clause. We have considered all of the arguments. But the

arguments are not so strong as to persuade us that the President’s interpretation is

incorrect. For example, we reject the argument that the plain meaning of the

phrase, “the Recess of the Senate,” limits the opportunity to make recess

appointments to one particular recess: the recess at the end of a Session. We do

not agree that the Framers’ use of the term “the” unambiguously points to the

single recess that comes at the end of a Session. Instead, we accept that “the

Recess,” originally and through today, could just as properly refer generically to

any one -- intrasession or intersession -- of the Senate’s acts of recessing, that is,

taking a break. See The Random House Dictionary of the English Language 1965

(2d ed. 1987) (1966) (defining “the” as “used to mark a noun as being used

generically: the dog is a quadruped”); 17 The Oxford English Dictionary, 879 (2d

ed. 1989) (1928) (defining “the” as “referring to a term used generically or

universally” and providing examples of such usage from the 18th Century).7

For another example, we are not persuaded by the argument that the

Framers’ use, in three other clauses, of the term “Adjournment,” and not “Recess,”

7
By the way, the Constitution does not limit a term of Congress to two Sessions. One
Congress had four Sessions. And several, including the first, had three Sessions. Therefore,
even if the phrase "the Recess of the Senate" meant only recesses between the Sessions of the
Congress (which we do not accept), there could easily be more than one such recess per
Congress.

9
necessarily limits the meaning of “Recess” to a particular kind of break: only a

break at the end of a Session. Instead of describing a block of time, the term

“Adjournment” in the Constitution can be read to signify a parliamentary action:

Congress’s taking or having taken a break. See e.g., U.S. Const. art. I, §7, cl. 2

(“If any Bill shall not be returned by the President within ten Days . . . the Same

shall be a Law . . . unless the Congress by their Adjournment prevent its Return . .

.”).

We know that the Supreme Court has used the term “Adjournment” in a

manner that suggests that the word signifies a break period rather than signifying a

means by which a break is taken. See Wright v. United States, 58 S.Ct. 395, 398

(1938). The Supreme Court there was construing the term “Adjournment” for

purposes of the Pocket Veto Clause: the question of the meaning of the word

“Recess” in the Recess Appointments Clause was not before the Court. We note,

however, that even if the Wright Court’s usage of “Adjournment” and “Recess”

were directly applicable here, their usage would suggest that the term

“Adjournment” is the formal break occurring at the end of a Session and that a

“Recess” is something that can and does occur during a Session. See id. at 398

(noting that a three-day “recess is not an adjournment”). This usage by the

Supreme Court tends to support our accepting the President's interpretation that a

10
“Recess” includes a break during a Session.

The Constitution, on its face, does not establish a minimum time that an

authorized break in the Senate must last to give legal force to the President’s

appointment power under the Recess Appointments Clause. And we do not set the

limit today. Although a President has not before appointed a judge to an Article

III court during an intrasession recess as short as the one in this case,

appointments to other offices -- offices ordinarily requiring Senate confirmation --

have been made during intrasession recesses of about this length or shorter.8

Furthermore, several times in the past, fairly short intrasession recesses have given

rise to presidential appointments of judges to Article III courts.9

Twelve Presidents have made more than 285 intrasession recess

appointments of persons to offices that ordinarily require consent of the Senate.

So, given the words of the Constitution and the history, we are unpersuaded by the

argument that the recess appointment power may only be used in an intersession

8
For example, President Clinton appointed a judge to the Court of Federal Claims during
an intrasession eleven-day recess. President Clinton made another recess appointment during an
intrasession nine-day recess. President Reagan and President Coolidge made appointments
during intrasession breaks of no more than thirteen-days. H. Hogue, Congressional Research
Service, Intrasession Recess Appointments CRS-7 - CRS-29 (April 23, 2004).
9
For example, President Nixon appointed three Judges to the D.C. Circuit Court of
Appeals during an intrasession 32-day recess. And President Truman appointed several District
Court Judges during an intrasession 35-day recess. H. Hogue, Congressional Research Service,
Intrasession Recess Appointments CRS-9 - CRS-21 (April 23, 2004).

11
recess, but not an intrasession recess. Furthermore, what we understand to be the

main purpose of the Recess Appointments Clause -- to enable the President to fill

vacancies to assure the proper functioning of our government -- supports reading

both intrasession recesses and intersession recesses as within the correct scope of

the Clause. That an intersession recess might be shorter than an intrasession

recess is entirely possible.10 The purpose of the Clause is no less satisfied during

an intrasession recess than during a recess of potentially even shorter duration that

comes as an intersession break.

“Vacancies” Need Not Arise During the Recess in Order to be Filled

About the phrase in the Recess Appointments Clause that speaks of filling

“Vacancies that may happen during the Recess,” we accept this phrase, in context,

means that, if vacancies “happen” to exist during a recess, they may be filled on a

temporary basis by the President. This view is consistent with the understanding

of most judges that have considered the question, written executive interpretations

from as early as 1823, and legislative acquiescence. See United States v.

10
In fact, over the course of this nation’s history, the Senate has effectively taken zero-day
intersession recesses (at least in 1867 and 1903, the Senate did not break for an intersession
recess); and the Senate has taken intrasession recesses lasting months, including one of nearly 5
months (7 August 1948 through 31 December 1948).

12
Woodley, 751 F.2d 1008, 1012 (9th Cir. 1985) (en banc) (noting that contrary

interpretation “conflicts with a common sense reading of the word happen, as well

as the construction given to this word by the three branches of our government”);

United States v. Allocco, 305 F.2d 704, 709-15 (2d Cir. 1962); see also In re

Farrow, 3 F.112 (N.D. Ga. 1880).

On its face, the phrase is open to more than one interpretation. For example,

the word “happen” can be defined as “befall” which has been defined as “happen

to be.” Compare 6 Oxford English Dictionary 1096 (2d ed. 1989) (1928) with 2

Oxford English Dictionary at 62. Therefore, the phrase’s most accepted

interpretation (upon which the President has relied and that we too accept) does

not contradict the plain meaning rule.

In addition, as we understand the history, early Presidents -- when delegates

to the Constitutional Convention were still active in government -- made recess

appointments to fill vacancies that originated while the Senate was in Session. For

example, President Washington, during a Senate break in 1789, appointed Cyrus

Griffin to fill a judgeship created during a previous Session; and President

Jefferson, during a Senate break in 1801, appointed three judges to fill vacancies

created during a previous Session.

Congress at least implicitly agrees with this view of recess appointments.

13
See 5 U.S.C. § 5503 (1996) (discussing salary requirements for officers appointed

to fill a vacancy that existed while Senate was in session).11 Furthermore,

interpreting the phrase to prohibit the President from filling a vacancy that comes

into being on the last day of a Session but to empower the President to fill a

vacancy that arises immediately thereafter (on the first day of a recess) contradicts

what we understand to be the purpose of the Recess Appointments Clause: to keep

important offices filled and the government functioning.12

One Non-Justiciable Issue Is Presented

As judges, we have the authority and duty to construe and to apply the

Constitution as it is written. We have done so today to conclude that the

Constitution gives to the President the discretionary authority to appoint a judge to

11
That Congress is willing, under certain circumstances, to pay recess appointees filling
vacancies that had existed while the Senate was in Session suggests to us that it is the view of the
majority of Congress that the President’s making of such appointments is likely not
unconstitutional. To interpret the statute’s significance any other way would seem to attribute to
Congress an intent to countenance what they saw as an unlawful practice.
12
We do not agree that the different language of Article I, Section 3, Clause 2 (addressing
the filling of Senate vacancies during recesses of state legislatures) shows that what has long
been the common interpretation of the Recess Appointments Clause is wrong. Nor do we agree
that Hamilton's capitalization or italicization of the words “during the recess of the Senate” in
Federalist 67 and 76 indicates that the vacancy to be filled (as opposed to the appointment itself)
must occur in the recess.

14
fill a vacancy on an Article III court during a ten- or eleven-day, intrasession

recess of the Senate.

Plaintiff-appellees seem to go on to contend another thing. They contend

that the President misused this discretionary appointment authority in this

particular instance because Judge Pryor’s nomination -- before the recess

appointment -- had been especially controversial and his confirmation had been

blocked in the Senate. The argument, as we understand it, is that this specific

recess appointment circumvented and showed an improper lack of deference to the

Senate’s advice-and-consent role and, thus, should not be allowed.

This kind of argument presents a political question that moves beyond

interpretation of the text of the Constitution and on to matters of discretionary

power, comity and good policy. These matters are criteria of political wisdom and

are highly subjective. They might be the proper cause for political challenges to

the President, but not for judicial decision making: we lack the legal standards --

once we move away from interpreting the text of the Constitution -- to determine

how much Presidential deference is due to the Senate when the President is

exercising the discretionary authority that the Constitution gives fully to him.

Conclusion

15
 We are not persuaded the President exceeded his constitutional authority in

a way that causes Judge Pryor’s judicial appointment to be invalid. We conclude

that Judge Pryor may sit with this Court lawfully and act with all the powers of a

United States Circuit Judge during his term of office.13

MOTION DENIED.14

13
Plaintiff-appellees also have moved to disqualify Judge Pryor based on his service as
the Attorney General of the State of Alabama at the time of the Hope v. Pelzer, 122 S.Ct. 2508
(2002) decision and on his comments -- made before his appointment to this Court and before
his taking the oath of office as a judge -- about the outcome of that case. This aspect of the
motion to disqualify approaches being frivolous. Hope involved different parties and a different
set of material facts than are present in this case. In addition, all or almost all judges were
advocates on one side or another of many controversies before becoming judges. When they
become judges, they take on an altogether different job and swear to judge “impartially.” Mere
representation and opinions about a previous unrelated matter -- especially made before one took
the oath of office -- do not disqualify a judge. See, e.g., United States v. Outler, 659 F.2d 1306,
1312 (5th Cir. Unit B 1981), overruled on other grounds by United States v. Steele, 147 F.3d
1316 (11th Cir. 1998) (en banc). Judge Pryor’s statements made as Alabama’s Attorney General
do not disqualify him as a judge in this Georgia case.
14
We considered certifying to the Supreme Court the question of the validity of Judge
Pryor’s recess appointment. We, however, decided against that course largely because we
believed our ruling on the matter would almost certainly be a speedier determination. We think
that a speedier determination is best for the Court, for Judge Pryor, and for the parties that come
before this Court. Had we certified the question, we had no way of knowing when the Supreme
Court might get to rule on it or even if they would take the question at all. In the meantime,
everyone concerned would be in a kind of legal limbo. Furthermore, it is not the nature of this
Court of Appeals to blink because a case is hard or sensitive. As the Supreme Court has said, it
is the “task” of a Court of Appeals “to decide all properly presented cases coming before it . . .”
Wisniewski v. United States, 77 S.Ct. 633, 634 (1957) (dismissing certification). Now that we
have ruled, the Supreme Court, of course, can decide for itself (and on a schedule of its own
choosing) whether the issue is important enough or close enough to justify their limited time and
energy in its consideration.
The public has no good reason to doubt the impartiality of our decision: our own offices
are not at stake in this case; we have no financial interest in the outcome; and we did not select or
appoint Judge Pryor to sit on this Court. We recognize that our associate Judge Pryor has an
interest in the motion, but even the naming of a judicial colleague as a defendant in litigation

16
 For the Court:
J.L. EDMONDSON
Chief Judge

(and Judge Pryor is not a defendant here) does not require automatic disqualification of every
judge on the same court. Guide to Judiciary Policies and Procedures, Vol. II, Ch. IV, Published
Advisory Opinion No. 103(II)(B) (2002). In addition, on the question of the constitutionality of
Judge Pryor’s appointment, several factors point toward our going forward to decide this case:
(1) the issue concerns solely the President’s recess appointment power and bears no relation to
Judge Pryor’s personal conduct or credibility; (2) even as to the narrow issue of the President’s
appointment power, the motion raises purely legal, constitutional issues based on undisputed
facts and does not involve discretion or any fact-finding by this Court; (3) the motion raises
mainly an issue affecting all recess appointments and not only Judge Pryor’s appointment; (4)
Judge Pryor is not a party to this case and has himself voluntarily recused from participating in
this motion to disqualify; and (5) as noted above, our prompt resolution of this issue, as opposed
to certification, best serves sound judicial administration.
By the way, no one has sought to disqualify any or all of the Article III judges of this
Court from deciding this motion.

17
BARKETT, Circuit Judge, dissenting.1

The Constitution states that

[t]he President shall have Power to fill up all Vacancies that may happen
during the Recess of the Senate.

U.S. Const., art. II, § 2, cl. 3. The application of this provision raises three

questions. First, can the President use the Recess Appointments Clause to fill a

vacancy that did not occur during a recess? Second, when must the President

exercise his power to fill a vacancy “that may happen during the Recess”? Third,

does the phrase “the Recess” include both inter-session and intra-session recesses?

To decide on the petitioners’ motion, we need only determine the answers to the

first two of these questions.

The majority finds, first, that it matters not whether a vacancy happens

during a recess, but only that it exist during a recess. Second, the majority says

that the President can fill any vacancy that exists during one recess with an

appointment made during any subsequent recess.2

1
It is difficult for any of us to sit in judgment on the constitutionality of a colleague’s
appointment. I would have preferred to certify this question directly to the Supreme Court per 28
U.S.C. § 1254(2), or to request that the Supreme Court appoint another court to hear the matter.
Since the court has chosen to answer the question instead, I too address it.
2
The majority unnecessarily renders a decision as to the third question, finding that “the
Recess” is ambiguous enough to encompass both inter-session and intra-session recesses.
Although I would not reach this question, the text of the Constitution as well as the weight of the

18
 Because I believe that the majority’s conclusions conflict with the words of

the Constitution, the purpose of the Recess Appointments Clause, and the

structural principles underlying the Constitution’s delicate balance of power

between the executive and legislative branches of government, I respectfully

dissent.

historical record strongly suggest that the Founders meant to denote only inter-session recesses.
The textual point does not require much explanation. Had the Framers intended to include intra-
session as well as inter-session recesses, they could very easily have used the phrase “during a
recess of the Senate.” They chose instead to adopt a singular construction: “the Recess of the
Senate” (emphasis added). In addition, they capitalized the term “Recess,” which suggests
particularity rather than generality, formal rather than generic meaning.

These textual considerations are reinforced by the fact that early American legislators
were forced to interrupt the work that provided their primary source of income and to travel
slowly over long distances to a legislative seat. The Framers’ use of the singular construction
“the Recess” must be situated within this historical context.

The earliest congressional and presidential papers bear out this interpretation of the
phrase “the Recess.” See, for example, Journal of the Executive Proceedings of the Senate of the
United States of America, 1789-1805 (February 9, 1790), at
http://memory.loc.gov/ammem/amlaw/lawhome.html (last visited September 28, 2004) (Senate
postponing consideration, early in the second session of the first Congress, of President
Washington’s message “relative to ‘certain persons who decline the acceptance of offices, and to
certain temporary appointments during the recess’”); President George Washington’s Fifth
Annual Message to Congress (December 3, 1793), at
http://www.yale.edu/lawweb/avalon/presiden/sou/washs05.htm (last visited September 29, 2004)
(noting, on the day after the third Congress convened to begin its first session, that the Creek
Indians “have been relieved with corn and with clothing, and offensive measures against them
prohibited during the recess of Congress”); and Journal of the Senate of the United States of
America, 1789-1873 (May 23, 1794), at http://memory.loc.gov/ammem/amlaw/lawhome.html
(last visited September 28, 2004) (Senate adoption of several amendments to a bill authorizing
the President, “during the recess of the present Congress, to cause to be purchased or built a
number of vessels, to be equipped as galleys in the service of the United States”).

19
 I. The Plain Meaning of the Constitution

The first rule of constitutional interpretation is to look to the plain meaning

of the Constitution’s text. Solorio v. United States, 483 U.S. 435, 447 (1987). See

also Gibbons v. Ogden, 22 U.S. 1, 188 (1824) (“As men, whose intentions require

no concealment, generally employ the words which most directly and aptly

express the ideas they intend to convey, the enlightened patriots who framed our

constitution, and the people who adopted it, must be understood to have employed

words in their natural sense, and to have intended what they have said.”)

(Marshall, C.J.).

Under this rule, the plain meaning of the Recess Appointments Clause

directly, expressly, and unambiguously requires that before a vacancy can be filled

through the recess appointment power, that vacancy must have occurred during a

Senate recess.

The majority argues that the recess power is valid to fill a vacancy already

in existence at the time of the recess. According to the majority’s reading, the

Constitution does not say that a vacancy, to be filled, must be created during that

recess. See Majority Order at 12 (“‘Vacancies’ Need Not Arise During the Recess

in Order to be Filled”). But that is precisely what the Constitution does say. The

20
Recess Appointments Clause applies only to those “Vacancies that may happen

during the Recess of the Senate.” U.S. Const., Art. 2, § 2, cl. 3 (emphasis added).3

This language needs no interpretation. The text does not say that the President

shall have the power to fill all vacancies that may exist during the Recess of the

Senate. Instead, it uses the term “happen,” whose plain meaning, now as it was in

the eighteenth century, is “to take place; to occur, betide, befall.” Oxford English

Dictionary, 2nd ed. (1989).4 A vacancy that “may happen during

3
On both occasions in which the text of the Recess Appointments Clause is quoted in The
Federalist Papers, the phrase “during the recess of the Senate” is emphasized. See The Federalist
No. 67, at 390 (Alexander Hamilton) (Isaac Kramnick ed., 1987) (“The President shall have
power to fill up all vacancies that may happen during the recess of the Senate, by granting
commissions which shall expire at the end of their next session.”); and The Federalist No. 76, at
428 (Alexander Hamilton) (Isaac Kramnick ed., 1987) (“The President shall have power to fill up
all vacancies which may happen during the recess of the Senate, by granting commissions which
shall expire at the end of their next session.”). The majority’s interpretation of the clause would
attribute little if any meaning to the emphasis that Alexander Hamilton places on the term
“during” in these two papers. If anything, Hamilton’s emphasis on the phrase “during the recess
of the Senate” is inconsistent with the majority’s interpretation, which would give the President
the power to fill vacancies that occur even when the Senate is in session. By contrast, a reading
of the clause that limits the President’s power to only those vacancies that occur while the Senate
is in recess seems much more faithful to Hamilton’s emphasis on the word “during” here.
4
The OED entry goes on to describe “happen” as the “most general verb to express the
simple occurrence of an event.” All of the eighteenth-century English dictionaries that I have
consulted, including all those printed in America, support this reading of the term “happen.”
Thus, Samuel Johnson’s Dictionary of the English Language (published in London in 1755)
defines “happen” as “to fall out; to chance; to come to pass.” William Perry’s Royal Standard
English Dictionary (published in London in 1775, in America in 1788) defines “happen” as “to
come to pass, to light on.” Thomas Sheridan’s Complete Dictionary of the English Language
(published in London in 1780, where it first appeared as General Dictionary of the English
Language, in America in 1789) defines “happen” as “to fall out by chance; to light on by
accident.” John Entick’s New Spelling Dictionary of the English Language (published in
London in 1764, in America in 1800) defines “happen” as “to fall out, come to pass, chance.”
John Walker’s Critical Pronouncing Dictionary and Expositor of the English Language

21
the Recess of the Senate” can only be a vacancy that takes place or occurs “during

the Recess of the Senate.” It clearly cannot be a vacancy that happens while the

Senate is in session.

The plain meaning of the term “happen” seems all the more ineluctable

when one recalls that the 1787 Constitution included not one but two clauses

concerning recess appointments. The original Article I contained a provision for

the filling of Senate vacancies that read as follows:

[I]f Vacancies happen by Resignation, or otherwise, during the
Recess of the Legislature of any State, the Executive thereof may
make temporary Appointments until the next Meeting of the

(published in London in 1791, in America in 1803) defines “happen” as “to fall out by chance, to
come to pass; to light on by accident.” Samuel Johnson, Jr. and John Elliott’s Selected
Pronouncing and Accented Dictionary (published in America in 1800) defines “happen” as “to
fall out, come to pass.” Caleb Alexander’s Columbian Dictionary of the English Language
(published in America in 1800) defines “happen” as “to fall out, to light on.” Finally, Noah
Webster’s Compendious Dictionary of the English Language (published in America in 1806),
also known as “Webster’s First Dictionary,” defines “happen” as “to fall out, come to pass,
chance.”

To the extent that these definitions differ from today’s usage, it is not insofar as they
suggest that “exist” was a recognized synonym for “happen,” for that comparison is nowhere
made in any of the above dictionaries. Rather, the difference is that the eighteenth-century
definitions suggest a somewhat more pronounced emphasis on the element of chance or fortuity,
an emphasis entirely consistent with the plain meaning of the Recess Appointments Clause.

The majority’s response to all of this evidence is simply to note that “happen” in today’s
usage can also mean “befall,” which can also mean “happen to be.” See Majority Order at 13.
This is at best a strained effort to avoid the available dictionary evidence, and with it the plain
meaning rule. A cross-reference is not a direct definition, and this reference comes from a
contemporary and not an eighteenth-century dictionary. The majority provides no direct
evidence from either contemporary or eighteenth-century dictionaries – and no evidence at all
from any eighteenth-century dictionaries – that “happen” can mean “exist.”

22
 Legislature, which shall then fill such Vacancies.

U.S. Const., art. I, § 3, cl. 2, superseded by U.S. Const. amend. XVII. It seems

difficult to imagine that the framers could have intended the term “happen” here to

mean anything other than “occur” or “take place” given that the manner in which

they envisioned a vacancy “happening” was “by Resignation, or otherwise.” That

is to say, the framers seem to have contemplated that a vacancy would “happen”

when a particular triggering event occurred – whether a resignation or other event

(such as a sudden illness or death) – the timing of which event could be clearly

said to fall “during the Recess” of the Senate. And since there is no reason why

the Framers would have intended the term “happen” to mean one thing in Article I

and something different in Article II, particularly where both articles relate to the

same subject of recess appointments, the majority’s reading of the Article II

Recess Appointments Clause seems even more difficult to reconcile with the plain

meaning of the Constitution. See Whitman v. National Bank of Oxford, 176 U.S.

559, 563 (1900) (“The simplest and most obvious interpretation of a Constitution,

if in itself sensible, is the most likely to be that meant by the people in its

adoption.”) (internal citation and quotations omitted); National Mut. Ins. Co. of

D.C. v. Tidewater Transfer Co., 337 U.S. 582, 587-88 (1949) (holding that to

classify the District of Columbia as a “state” would give the word “state” as used

23
in Article III a meaning inconsistent with its use in the Constitution’s other

articles, and finding that “such inconsistency in a single instrument is to be

implied only where the context clearly requires it”).

Thus, the question of when a vacancy must occur admits of very little

ambiguity. Accordingly, the plain meaning rule compels the conclusion that the

Constitution means what it says: the recess appointment power of Article II is

good only for those vacancies that happen while the Senate is in recess.5

II. The Purpose of the Recess Appointment Power

Determining whether the President can fill a vacancy that did not occur

while the Senate was in recess still leaves open the question of when the President

can make a recess appointment itself. Contrary to what the majority holds, the

5
See also William Rawle, A View of the Constitution of the United States 162-67 (2nd
ed. 1829) (quoted in Ralph Lerner and Philip Kerner, eds., The Founders’ Constitution (1987),
vol. 4 at 115) (“It would be improper to pass over the construction given by the senate to the
power of appointing during their recess. It has been held by that venerable body, that if new
offices are created by congress, the president cannot, after the adjournment of the senate, make
appointments to fill them. The vacancies do not happen during the recess of the senate.”)
(emphasis in the original); and S. Rep. No. 37-80, at 3-6 (3d. Sess. 1863) (rejecting the argument
that the term “happen” in the Recess Appointments Clause can be construed to mean “happen to
exist”).

24
Constitution certainly does not endorse the conclusion that the President can fill a

vacancy that happens during one recess by making an appointment during a

subsequent recess. Where a constitutional provision is unclear or silent on a

particular issue, we must look to the spirit and purpose of the provision for

guidance. See Baker by Thomas v. General Motors Corp., 522 U.S. 222, 232

(1998) (finding that the “animating purpose” of the Full Faith and Credit Clause

was to “alter the status of the several states as independent foreign sovereignties”

and “make them integral parts of a single nation”) (internal citation omitted); Katz

v. United States, 389 U.S. 347, 350-51, 359 (1967) (finding that one of the

purposes of the Fourth Amendment is to protect the public’s reasonable

expectations of privacy, and holding that the admission of evidence obtained by an

electronic wiretap without a warrant is unconstitutional); Green v. U.S., 355 U.S.

184, 187 (1957) (emphasizing that the Double Jeopardy Clause of the Fifth

Amendment was “designed to protect an individual from being subjected to the

hazards of trial and possible conviction more than once for an alleged offense”).

At the time of the founding, the purpose of the Recess Appointments Clause

was to enable the President to fill vacancies that arose when the Senate is disabled

from acting upon appointments. The Framers’ only known discussion of the

Recess Appointments Clause is The Federalist No. 67, by Alexander Hamilton.

25
Hamilton wrote:

The relation in which [the recess appointments] clause stands to the
[advice-and-consent clause], which declares the general mode of
appointing officers of the United States, denotes it to be nothing more
than a supplement to the other, for the purpose of establishing an
auxiliary method of appointment, in cases to which the general
method was inadequate. The ordinary power of appointment is
confined to the President and Senate jointly, and can therefore only be
exercised during the session of the Senate; but as it would have been
improper to oblige this body to be continually in session for the
appointment of officers and as vacancies might happen in their
recess, which it might be necessary for the public service to fill
without delay, the succeeding clause is evidently intended to
authorize the President, singly, to make temporary appointments
‘during the recess of the Senate, by granting commissions which shall
expire at the end of their next session.’

The Federalist No. 67, at 391 (Isaac Kramnick ed., 1987) (emphasis in the

original).6 Thus, Hamilton argues, the Framers added the Recess Appointments

Clause to the Constitution in order to ensure that the President would be able to

fill offices when the Senate was unable to act on the President’s nominees.

Nowhere does Hamilton suggest that the clause was added to allow the President

to appoint someone whom the Senate might refuse to confirm.

The leading early nineteenth-century constitutional treatise, Joseph Story’s

Commentaries on the Constitution, reinforces this description of the purpose of the

6
Hamilton’s purpose in this paper was to rebut the allegation that the Constitution would
have allowed the President, rather than the governors of the states, to fill vacancies in the Senate.

26
Recess Appointments Clause. Story notes that the recess appointment power was

designed to avoid requiring the Senate to be “perpetually in session, in order to

provide for the appointment of officers.” As such, Story wrote, the clause was

meant simply to further the interests of “convenience, promptitude of action, and

general security.”7

Without quite admitting the point in full, the majority correctly

acknowledges that allowing the President to fill up vacancies in federal offices

while the Senate is disabled from acting on presidential nominations is the purpose

of the recess appointment power. See Order at 7 (“We accept that it was the intent

of the Framers to keep important offices filled and government functioning.”); id.

at 12 (“[T]he main purpose of the Recess Appointments Clause [is] to enable the

President to fill vacancies to assure the proper functioning of our government.”).

But the majority’s reading of the scope of the recess appointment power is far

broader than this justification allows. This is because the majority’s holding gives

a President the power to repeatedly circumvent the Senate’s advice-and-consent

role even when the Senate is not disabled from exercising that role but is, instead,

perfectly capable of exercising it.

7
3 Joseph Story, Commentaries on the Constitution § 1551 (1833) (quoted in Ralph
Lerner and Philip Kerner, eds., The Founders’ Constitution (1987), vol. 4 at 122).

27
 Under the majority’s reading, if the Senate refuses to give its consent to a

particular nominee during a particular session, there is nothing to stop a President

from waiting not just until the immediately ensuing recess, but also until after the

Senate has repeatedly reconvened and recessed before appointing that person

through the recess appointment power. There is absolutely no reason why the

Senate would not be able to exercise its advice-and-consent role over this long

span of time, and yet the majority’s interpretation gives a President the ability to

appoint someone without regard to whether the Senate has in fact been available to

consider that nominee. All that a President need worry about, under such a view,

is (1) whether the Senate is in town and (2) whether there is a vacancy in a federal

office.

This example suffices to show that the majority’s explanation of the

justification of the Recess Appointments Clause – to allow a President to fill

vacancies when the Senate cannot act to confirm nominees – bears little or no

relation to its reading of the scope of a President’s recess appointment power. For

this reading makes no attempt to limit the use of the recess appointment power to

those circumstances in which the Senate is in fact disabled from acting on

presidential nominations, even though this is the only conceivable (and indeed the

only historical) justification for the recess appointment power. As Hamilton

28
emphasized in The Federalist No. 67, the recess appointment power is “nothing

more than a supplement” or “auxiliary” to the “ordinary” and “general mode of

appointing officers of the United States,” which is “jointly,” by way of the

Senate’s advice and consent. The Federalist No. 67, at 391 (Isaac Kramnick ed.,

1987) (emphasis in the original). The majority’s decision, however, entails that a

President can fill a vacancy at any point in the future when the Senate is not in

session. This cannot be correct.

III. Structural Principles and the Separation of Powers

Where a provision of the Constitution is silent on a matter, we must also

read that provision so that it will harmonize with other constitutional provisions.

See Nevada v. Hall, 440 U.S. 410, 433 (1979) (“[W]hen the Constitution is

ambiguous or silent on a particular issue, this Court has often relied on notions of

a constitutional plan – the implicit ordering of relationships within the federal

system necessary to make the Constitution a workable governing charter and to

give each provision within that document the full effect intended by the

Framers.”). If the Constitution did not contain any other provisions concerning

the appointment of federal officers, it might be possible to conclude with the

29
majority that a President could fill a vacancy created during one recess with an

appointment made during a subsequent recess. It might even be possible to

conclude that a President could fill a vacancy created during a recess at any future

time, including when the Senate is in active session. But the Constitution does

contain another provision concerning the appointment of federal officers. The

Constitution states that the President

shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint Ambassadors, other public Ministers and
Consuls, Judges of the supreme Court, and all other Officers of the
United States.

U.S. Const., art. II, § 2, cl. 2. Thus, the Constitution gives to the Senate the power

to withhold its consent to any nomination to a federal office made by a President.

By interpreting the Recess Appointments Clause to allow a President to fill a

vacancy created during one recess with an appointment made during a subsequent

recess, we are effectively allowing a President to side-step the Senate’s advice-

and-consent role even where the Senate is not disabled from fulfilling that role –

which, I note again at the risk of repetition, was and still is the only reason for

creating a recess appointment power.

I do not believe that the Constitution permits a President to frustrate in this

way the careful separation of powers intended by the framers. In between a recess

30
during which the vacancy was created and a recess during which it is filled, the

Senate would be in active session and would be perfectly capable of carrying out

its advice-and-consent responsibilities. There would be no reason why the Senate

would not in fact carry out those responsibilities – unless, of course, it chose not to

give its consent to a particular candidate. Yet the Senate’s refusal to consent to a

presidential nomination does not justify the President in circumventing the text

and structure of the Constitution.

Considering that the Recess Appointments Clause was intended to enable

the President to fill vacancies only when the Senate was disabled from acting, and

in light of the role that Article II gives the Senate in approving nominations to

federal offices, there must be some more meaningful limit on the President’s

power to make a recess appointment than the two the majority proposes (i.e., that

the Senate be in recess and that there be a vacancy to fill). The only plausible

limit – as well as the most obvious one – is to require the President to fill a

vacancy during the same recess in the course of which it happens. This reading is

supported not only by considerations of constitutional purpose and structure, but

also by the language of the Recess Appointments Clause, which suggests that the

context in which the recess appointment power is triggered – the happening of a

vacancy during a particular recess – also defines the limits of the recess

31
appointment power. See The Federalist No. 67, at 391 (Alexander Hamilton)

(Isaac Kramnick ed., 1987) (“The time within which the [recess appointment]

power is to operate, ‘during the recess of the Senate,’ and the duration of the

appointments, ‘to the end of the next session’ of that body, conspire to elucidate

the sense of the provision . . .”).

IV. Some Additional Considerations

The Second and Ninth Circuits have ruled that the President may use the

recess appointment power to fill any vacancy that exists at the time of a particular

recess, even if the vacancy did not happen or occur during that same recess. See

United States v. Allocco, 305 F.2d 704 (2nd Cir. 1962); United States v. Woodley,

751 F.2d 1008 (9th Cir. 1985). In so finding, Woodley relied essentially upon the

reasoning of Allocco, which conceded that its interpretation of the recess

appointment power did not reflect a literal and logical reading of the Constitution.

The Allocco Court observed that, in matters of constitutional interpretation, “the

logic of words should yield to the logic of realities.” Allocco, 305 F.2d at 710

(quoting Di Santo v. Pennsylvania, 273 U.S. 34, 43 (1927) (Brandeis, J.,

dissenting)). By “the logic of realities,” the Allocco Court had in mind the need to

32
avoid a situation in which “judicial offices which are vacant on the day the Senate

adjourns must remain vacant until the Senate reconvenes and has the opportunity

to fill them.” Id. Any other result, the Allocco Court reasoned, would “create

Executive paralysis and do violence to the orderly functioning of our complex

government.” Id. at 712.

As an initial matter, while it is a proper for an Article III court to consider

the range of circumstances that its interpretation of a particular constitutional

provision might cover, such consideration cannot displace the obligation to decide

concrete “Cases” and “Controversies” in accordance with the plain meaning and

purpose of the Constitution. See U.S. Const. art. III, § 2, cl. 1. Second, even on a

purely practical note, the Allocco and Woodley argument about the dangers of

governmental paralysis is more of a phantom than anything else, even in the

context of our own times. The vacation of an office vital to the conduct of

national security two days before the Senate goes on recess is a useful example.

Despite the initial appeal of the Allocco and Woodley argument in this context, a

few moments of reasoned deliberation will show that adhering to the plain

meaning and purpose of the Recess Appointments Clause does not threaten in any

way the President’s ability to successfully manage the government during a

security crisis. Common sense and practical experience tell us that the President

33
can and does call upon whichever individuals – acting officials, deputy directors,

etc. – he needs to assist him in such a situation. A formal appointment is of little

importance at such a time.

In contrast, there is a real, concrete concern that the understanding of the

recess appointment power embraced by the majority will allow the President to

repeatedly bypass the role the Framers intended the Senate to play in reviewing

presidential nominees. Thus, for the reasons discussed above, the reasoning of

Allocco and Woodley not only fails to adhere to the text of the Constitution, as

Allocco itself acknowledged, but also makes the wrong tradeoff between

executive and legislative authority, a tradeoff that comports neither with the

purpose of the Recess Appointments Clause nor with the structure of the

Constitution.8

Other than Allocco and Woodley, neither of which establishes the

governing law of this circuit, the only authority the majority is able to muster for

its interpretation is 5 U.S.C. § 5503 (1994). The majority characterizes this statute

as a discussion of “salary requirements for officers appointed to fill a vacancy that

8
It is also worth noting that Woodley makes selective and somewhat misleading use of
the various eighteenth-century dictionary definitions of “happen” quoted in footnote 1 above.
See Woodley, 751 F.2d at 1013 n.8. The effect is to minimize the extent to which those
definitions suggest that “happen” meant “to occur” or “take place” even in the eighteenth
century, and not merely in “modern” usage.

34
existed while Senate was in session” and suggests that it indicates Congress has

implicitly agreed with the majority’s interpretation. Order at 13-14. But 5 U.S.C.

§ 5503 is not a discussion of “salary requirements” at all. Rather, it provides that

[p]ayment for services may not be made from the Treasury of the
United States to an individual appointed during a recess of the Senate
to fill a vacancy in an existing office, if the vacancy existed while the
Senate was in session and was by law required to be filled by and
with the advice and consent of the Senate, until the appointee has
been confirmed by the Senate.

5 U.S.C. § 5503(a). Contrary to what the majority suggests, this statute does not

indicate that Congress has impliedly consented to the majority’s interpretation of

the Recess Appointments Clause. Rather, the statute shows just the opposite: it

shows that Congress itself has disapproved of the President’s use of the recess

appointment power to fill a vacancy that “existed while the Senate was in session

and was by law required to be filled by and with the advice and consent of the

Senate.” Id.9

The statute goes on to set forth three very limited exceptions to the general

prohibition on the payment of salaries to officers appointed in violation of the

9
See S. Rep. No. 37-80 at 3-6 (3d. Sess. 1863) (explaining the rationale for the law now
known as 5 U.S.C. § 5503 and rejecting the argument that the term “happen” in the Recess
Appointments Clause can be construed to mean “happen to exist”).

35
Recess Appointments Clause.10 But those exceptions do not establish the

constitutionality of the majority’s interpretation: they suggest instead that

Congress has simply decided to recognize the reality of an existing (and

unconstitutional) practice. The exceptions to the statute only underline that

Congress does not have the last word over the constitutionality of the President’s

use of the recess appointment power. See Marbury v. Madison, 5 U.S. 137, 177

(1803) (“It is emphatically the province and duty of the judicial department to say

what the law is.”). Moreover, I do not see how these exceptions, which were

added to the statute in 1940,11 can be used to tell us anything about the meaning of

10
The statute does not apply:

(1) if the vacancy arose within 30 days before the end of the session of the Senate;

(2) if, at the end of the session, a nomination for the office, other than the
nomination of an individual appointed during the preceding recess of the Senate,
was pending before the Senate for its advice and consent; or

(3) if a nomination for the office was rejected by the Senate within 30 days before
the end of the session and an individual other than the one whose nomination was
rejected thereafter receives a recess appointment.

5 U.S.C. § 5503(a)(1-3). It also provides that any nomination to fill a vacancy described in one
of those three exceptions “shall be submitted to the Senate not later than 40 days after the
beginning of the next session of the Senate.” 5 U.S.C. § 5503(b). As the majority also fails to
acknowledge, none of the three exceptions applies to the instant case.
11
Compare Rev. Stat. § 1761 as amended by 43 Stat. 669 (Act of June 7, 1924) with 54
Stat. 751 (1940). By contrast, the prohibition on payment of salaries to individuals appointed to
fill vacancies that existed while the Senate was in session dates back to 1863. See 12 Stat. 646
(Act of February 9, 1863).

36
a constitution framed and ratified in the late 1780s. If anything, 5 U.S.C. § 5503

undermines rather than supports the majority’s decision.

The statute also calls into question the Woodley Court’s finding, echoed by

the majority here, that “there is an unbroken acceptance of the President’s use of

the recess power . . . by the three branches of government.” Woodley, 751 F.2d at

1011. Nor is 5 U.S.C. § 5503 the only evidence of congressional disagreement

with the President’s understanding of the scope of the recess appointment power.

See, e.g., William Rawle, A View of the Constitution of the United States 162-67

(2nd ed. 1829) at 162-67 (quoted in Ralph Lerner and Philip Kurland, eds., The

Founders’ Constitution (1987), vol. 4 at 115) (“It would be improper to pass over

the construction given by the senate to the power of appointing during their recess.

It has been held by that venerable body, that if new offices are created by

congress, the president cannot, after the adjournment of the senate, make

appointments to fill them. The vacancies do not happen during the recess of the

senate.”) (emphasis in the original).

More to the point, however, even if one accepts at face value the Woodley

Court’s assertion of an “unbroken” history of acceptance, the failure of one branch

of government to challenge how another branch understands or applies the

Constitution does not render the latter’s view correct. This is particularly so

37
where the Constitution’s plain meaning, purpose, and structure all militate against

accepting that view. Nor does the failure of litigants to bring constitutional

challenges to the executive’s use of the Recess Appointment Clause tell us

anything about what the clause means. Adverse possession is a rule of property

law, not constitutional law. There is no statute of limitations for interpreting and

enforcing the Constitution. See Freytag v. C.I.R., 501 U.S. 868, 880, 111 S.Ct.

2631, 2639 (1991) (finding that “[n]either Congress nor the Executive can agree to

waive [the] structural protection” of the Appointments Clause, and that the

“structural interests protected by the Appointments Clause are not those of any one

branch of Government but of the entire Republic”); I.N.S. v. Chadha, 462 U.S.

919, 942 at n. 13 (1983) (rejecting the argument that a law dating back to 1940 is

immune to the constitutional scrutiny of courts simply because it was passed by

Congress and approved by the President). The President’s use of the recess

appointment power has been challenged on appeal only twice before, in Allocco

and Woodley, both of which decisions privileged a supposed history of

congressional and judicial acquiescence over the Constitution’s plain meaning,

purpose, and structure. The question of which should prevail – a debatable

historical view or the clear import of the Constitution – has never before reached

the Supreme Court.

38
 A final observation: by invoking the political question doctrine at the end of

its order, the majority conflates the Plaintiff-Appellees’ description of the

circumstances of Judge Pryor’s appointment with the reasons for its

unconstitutionality. See Majority Order at 15 (“Plaintiff-Appellees . . . contend

that the President misused [his] discretionary appointment authority in this

particular instance because Judge Pryor’s nomination – before the recess

appointment – had been especially controversial and his confirmation had been

blocked in the Senate. The argument, as we understand it, is that this specific

recess appointment circumvented, and showed an improper lack of deference to

the Senate’s advice-and-consent role and, thus, should not be allowed.”). I agree

that whether the President shows an improper lack of deference to the Senate in

any given circumstance might indeed be a political question. But that is not the

question we face. We are asked to decide whether the President exceeded his

authority by appointing Judge Pryor.12 For the reasons outlined above, the

Constitution provides a clear answer to this question. Therefore we cannot shirk

our duty to resolve this matter simply because it may have some political

12
I note that the majority first claims that the motion somehow raises a separable
“political question.” However, when it comes to explaining why the court chose not to certify
the question to the Supreme Court, the majority argues that “the motion raises purely legal,
constitutional issues.” Majority Order at 17 n.14.

39
consequences. That a decision may have political consequences certainly does not

make it non-justiciable under the political question doctrine. Baker v. Carr, 82

S.Ct. 691, 710 (1962) (“The doctrine of which we treat is one of ‘political

questions,’ not one of ‘political cases.’ The courts cannot reject as ‘no law suit’ a

bona fide controversy as to whether some action denominated ‘political’ exceeds

constitutional authority. The cases we have reviewed show the necessity for

discriminating inquiry into the precise facts and posture of the particular case, and

the impossibility of resolution by any semantic cataloguing.”). See also Chadha,

462 U.S. at 943 (“Resolution of litigation challenging the constitutional authority

of one of the three branches cannot be evaded by courts because the issues have

political implications”).

I respectfully dissent.

40
WILSON, Circuit Judge, dissenting:

I dissent from the majority’s decision to deny the motion of plaintiffs-

appellees to disqualify Judge Pryor. Unlike the majority and Judge Barkett, I

would not reach the merits of the issue, and instead would decline to exercise our

discretion to entertain the motion. For the reasons that follow, I would certify the

question to the Supreme Court.

The motion, which challenges Judge Pryor’s authority to serve as a Circuit

Judge on this Court, argues that his appointment violated the Recess

Appointments Clause. Appellate courts have an obligation to review at any point

whether they have jurisdiction, Finn v. Prudential-Bache Sec., Inc., 821 F.2d 581,

584-85 (11th Cir. 1987), but as the majority notes, this issue is not jurisdictional.

Majority Op. at 2, n.1. The Supreme Court has held that Appointments Clause

objections are “nonjurisdictional” and thus are subject to forfeiture and waiver

analysis. Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 878, 111 S. Ct.

2631, 2639 (1991) (citations omitted). In Freytag, the Supreme Court chose to

address the Appointments Clause challenge before it, but never suggested that it

was compelled to do so. In fact, the majority characterized its exercise of its

discretion in that case as “rare.” Id. at 879, 111 S. Ct. at 2639. Four Justices

would not have reached the merits of the claim at all. See id. at 892, 111 S. Ct. at

41
2646 (Scalia, J., concurring in part and concurring in the judgment, joined by

Justices O’Connor, Kennedy, and Souter).

Other Supreme Court precedent supports the position that challenges to the

composition of a court are non-jurisdictional. Recently, the Supreme Court dealt

with a challenge to the composition of a Court of Appeals panel in Nguyen v.

United States, 539 U.S. 69, 123 S. Ct. 2130 (2003). There, non-Article III judges

sat on the panels that affirmed the petitioners’ convictions. The Supreme Court

exercised its supervisory power to correct the error, but did not consider the claim

to be jurisdictional. Id. at 74, 123 S. Ct. at 2134.

Additionally, this Court thrice previously denied leave to file an amicus

curiae brief raising the issue of Judge Pryor’s appointment because the motion to

file the brief was untimely. See Adefemi v. Ashcroft, No. 00-15783, United States

v. $242,484.00, No. 01-16485, United States v. Drury, No. 02-12942 (11th Cir.

June 10, 2004) (en banc orders). If the issue were jurisdictional, we would have

been required to address it (with or without the benefit of amicus curiae). Instead,

we declined to consider it because it was not raised in the proper fashion, applying

ordinary rules of appellate procedure. Because the issue of Judge Pryor’s

42
appointment is not a jurisdictional one, we are not obligated to address it.1

There are compelling reasons why the proper course of action is to decline

to exercise our discretion to address this issue. “A fundamental and longstanding

principle of judicial restraint requires that courts avoid reaching constitutional

questions in advance of the necessity of deciding them.” Lyng v. Northwest Indian

Cemetery Protective Ass’n, 485 U.S. 439, 445, 108 S. Ct. 1319, 1323 (1988). The

outcome of the underlying appeal – an important case concerning strip searches

and qualified immunity – does not depend on the resolution of this motion. We

would not have discretion to avoid the close constitutional questions surrounding

the propriety of Judge Pryor’s appointment if they were determinative of an

appeal, but that is not the situation facing us.2 Unless and until we cannot avoid

the question, notions of judicial restraint counsel against striving to decide

constitutional issues. See Elk Grove Unified Sch. Dist. v. Newdow, ___ U.S. ___,

___, 124 S. Ct. 2301, 2308-09 (2004) (discussing similar principles underlying the

1
The only circuit courts to have addressed the recess appointments of Article III judges
diverge on this point. The Second Circuit did not consider the issue to be jurisdictional. United
States v. Allocco, 305 F.2d 704, 707-08 & n.8 (2d Cir. 1962) (permitting a “departure” from
normal waiver rules). The Ninth Circuit raised the issue sua sponte because it felt the question
was a “jurisdictional problem[].” United States v. Woodley, 751 F.2d 1008, 1009 n.2 (9th Cir.
1985) (en banc). If, as I suggest, we were to certify the matter to the Supreme Court, one of the
questions certified could be whether the challenge at issue is jurisdictional.
2
I can envision situations in which the propriety of Judge Pryor’s appointment would be
the determinative question, but I need not expound upon those situations here.

43
concept of prudential standing, including “[t]he command to guard jealously and

exercise rarely our power to make constitutional pronouncements”).

Another important concern militates against the majority’s decision to reach

the merits of the motion. It is simply inappropriate for the members of a court to

sit in judgment of a colleague’s legitimacy. In the only two courts of appeals

decisions addressing the recess appointment of Article III judges, circuit judges

reviewed the appointment of district judges. See United States v. Woodley, 751

F.2d 1008 (9th Cir. 1985) (en banc); United States v. Allocco, 305 F.2d 704 (2d

Cir. 1962). The mandate to review lower-court judgments is the fundamental

characteristic of appellate courts. But it is nearly anathema for circuit court judges

to review a colleague’s legitimacy to sit as a member of their court.3

My specific concern is twofold. First, we risk damaging the collegiality for

which this Court is rightly known. Even our most vociferous dissents are critiques

of a judge’s legal reasoning in a particular case, and never (one hopes) devolve

into personal rebukes. And while the recess appointment question in the motion

before us is, in the strictest sense, a matter of constitutional interpretation that does

3
The only instance where we sit in judgment of each other’s opinions is when the en banc
court overturns a prior court decision. But even on these rare occasions, we do not review the
prior court’s legitimacy. Ordinarily, of course, panels of the Court are bound by a prior panel’s
decision. Although the reason for this is stare decisis, it also prevents a great deal of disharmony
that might result if panels of the Court were constantly overturning each other’s decisions.

44
not depend on the judge involved, it is inescapable that this is not a question we

can answer in the abstract. A vote in favor of the legal argument presented in the

motion is also a vote against Judge Pryor’s membership on our Court.4 Moreover,

even if such a decision were cast as a ruling that the President overstepped his

authority under the Recess Appointments Clause, it might also be construed as a

judgment that Judge Pryor should not have accepted the appointment in the first

place.

Imagine the risk to our collegiality if we granted the motion, but Judge

Pryor did not accept our ruling. He might decide to file in the Supreme Court a

petition for a writ of mandamus compelling us to restore him to the Court. I

should stress that I have no doubt that Judge Pryor would do anything but abide by

any decision of this Court, but even the slightest risk that a judge might sue his

colleagues should compel us to make every effort to avoid such confrontations.

Because it seems impossible to me to avoid the very personal impact of any

decision we make, it is neither wise nor prudent for us to make one.

Second, we risk public confidence in the judiciary as an institution. As of

September, 2004, Judge Pryor has authored 8 published opinions and 42

4
Indeed, one portion of the motion is not abstract at all, but asserts that this particular
appointment is unconstitutional. See Majority Op. at 14-15 (determining that this issue is a non-
justiciable political question).

45
nonpublished opinions. As of September 30, 2004, Judge Pryor has participated

as a member of a panel in 299 appeals, 40 of which were decided after oral

argument. In fact, Judge Pryor has already sat en banc with the full Court and has

participated in en banc decisions. Any decision we make on this motion risks

undermining public confidence in the Court. On the one hand, if we grant the

motion to disqualify Judge Pryor in this case because he was not validly appointed

to the Court, we would necessarily imply that he improperly sat in previous cases.

This would instantly call into question every one of those decisions. See Nguyen,

539 U.S. at 82-83, 111 S. Ct at 2138-39 (an improperly constituted court of

appeals panel required reversal of conviction, even though opinion affirming

conviction was unanimous, and in some circumstances could have been filed by a

two-judge quorum). Although it is not unheard of for us to overturn prior

decisions, if we granted the motion the public might reasonably wonder why we

allowed so many illegitimate decisions to be entered at all.

Conversely, if we deny the motion, the public might reasonably wonder

about our motives. I have detailed above the concerns for collegiality that should

be present in this case. An observer might assume that a desire to protect collegial

relations, or a personal affinity for Judge Pryor developed over the course of his

service to our Court, might have weighed in the decision not to remove him. As

46
discussed, the impact of our decision will be very deeply felt by Judge Pryor.

Judges are human, and we cannot risk giving the impression that our desire to

avoid confrontation and maintain collegiality affected our decision. Because of

the problems inherent in sitting in judgment of one’s colleague, we should avoid

imperiling public confidence in the Court.

As a final note, I hasten to add that I do not mean to suggest that no one

should answer the difficult constitutional questions arising from recess

appointments. I merely submit that in the present case, it should not be this Court.

While the common law “rule of necessity” would prevent the Supreme Court from

avoiding a decision on the legitimacy of a Justice’s recess appointment, that rule

only applies to courts of last resort or where no judge at all would be available.

See United States v. Will, 449 U.S. 200, 212-216, 101 S. Ct. 471, 479-81 (1980)

(discussing the history and application of the rule of necessity). The rule does not

apply when recourse may be had in a higher court. Such is the case before us.

The Supreme Court can address the merits of the recess appointment issue free of

the concerns facing us if we pass judgment on a colleague. Just as we sit in review

of the district courts, so the Supreme Court sits in review of us.

In light of the unique – indeed, unprecedented – circumstances of this

motion to rule on the legitimacy of a colleague’s presidential appointment, the

47
most prudent course for us to take is to decline to reach the merits of the motion.

Instead, as Judge Barkett suggests, we should certify the question to the Supreme

Court pursuant to 28 U.S.C. § 1254(2) (2000). See Dissenting Op. of Judge

Barkett at 1 n.1; see also United States v. Penaranda, 375 F.3d 238, 247 (2d Cir.

2004) (certifying questions to the Supreme Court).5 From the majority’s decision

to address the merits of the motion, I respectfully dissent.

5
The Second Circuit in Penaranda certified to the Supreme Court questions arising from
the Supreme Court’s decision in Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004).
Crucial to the Second Circuit’s decision was that Blakely impacted so many criminal cases, and
efficient administration of justice required prompt answers to questions about the scope of
Blakely. Similar concerns are present here. As noted, every case involving Judge Pryor is cast
into doubt until the questions presented in the motion are finally settled by the Supreme Court.
The sooner it rules on the validity of Judge Pryor’s appointment, the better. Certification not
only allows us to avoid sitting in judgment of a colleague’s legitimacy, it also facilitates Supreme
Court consideration of the issue as soon as possible, to the benefit of both this Court and litigants
before it. The majority contends that its decision today is the “speedier determination.” Majority
Op. at 16 n.14. To the contrary, I believe that the most rapid course we could have taken would
have been to certify the matter as soon as the motion was originally filed. The Supreme Court
would likely have decided whether to accept certification sooner than it would take to decide a
petition for certiorari following our decision.

48