[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