The D.C. Circuit’s recent decision regarding the Recess Appointments Clause (Noel Canning v. National Labor Relations Board) bills itself as an exercise in Heller-style textualism: “When interpreting a constitutional provision, we must look at the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution. District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008).” As a result, much of the decision is devoted to linguistic issues.
I’m going to take a look at how the court handled some of those issues—at the conclusion it reached and the reasoning it used to get there.
The verdict: the Recess Appointments Clause is a lot less clear than the D.C. Circuit makes it out to be, and the court’s reasoning isn’t very good.
Ordinarily, the president’s power to appoint high-level officials is subject to the requirement that his choices be confirmed by the Senate. But because the Senate isn’t always open for business, the Constitution provides that the president “shall have the 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.” One of the questions raised by this provision is what exactly is meant by the phrase the Recess of the Senate. That’s the issue I will discuss in this post.
To put the question into context, here’s some quick background. Every two years, when the most recently-elected members of the House of Representatives start their terms, a new term of Congress begins. Each new term is referred to as a separate Congress; the current Congress is the 113th. Since the Constitution requires Congress to meet at least once a year, each two-year Congress is divided into at least two officially-designated sessions. Currently, the 113th Congress is in its first session.
In between its formally-designated sessions, Congress is in recess. Everyone agrees that these breaks count as “recesses” for purposes of the Recess Appointments Clause. Congress also takes breaks periodically during each officially-designated session. During those breaks, Congress is simultaneously in session and not in session. It is in session because the officially-designated session is still in progress, but it is out of session because it has temporarily stopped conducting business.
The question is whether these breaks within an officially-designated session constitute “recesses” such that the president can exercise his recess-appointment power. According to the D.C. Circuit, the answer is no.
Posted in "recess", "the", Ambiguity, Cases, Constitution, Corpus linguistics & lexicography, Definiteness, Dictionaries, Indeterminacy, Law and corpus linguistics, Law and linguistics, Noel Canning v. NLRB, Recess Appointments Clasue, Semantics, Textualism, Underspecification, Words & phrases
I’ve been out of the country, with intermittent internet acess, while the controversy over Judge Posner’s review of review of Scalia & Garner’s book Reading Law has been brewing, and it’s only just now that I’ve seen Bryan Garner’s response to the review.
I haven’t looked at the cases Posner discusses in his review, so I’m not going to comment on whose reading of those cases is correct. But I do want to point out an inaccuracy in Garner’s response.
Garner says that all the canons of interpretation that are discussed in the book “are well established and have been frequently applied[.]” But as I think I’ve shown in my earlier post Three Syntactic Canons, that’s not correct. Both the Series-Qualifier Canon and the Nearest-Reasonable-Referent Canon break new ground in fairly significant ways. (See the earlier post for the details.) And I’ll add here that the “rule” from which I think the Series-Qualifer Canon derives is one that courts have not cited very often.
I thought I’d take a break from talking about Reading Law, and instead discuss a case that will be of interest to patent lawyers and to aficionados of interpretations that are breathtakingly bad. Actually, most of the patent lawyers probably know about the case already, although they don’t necessarily know about the decision’s breathtaking badness.
[This is Part 4 of my look at Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Bryan Garner. (Part 1; Part 2; Part 3.)]
Included in Reading Law’s list of 57 canons of interpretation are seven that are described as “syntactic canons.” Of these, three are the most important:
Last-Antecedent Canon. A pronoun, relative pronoun, or demonstrative adjective generally refers to the nearest reasonable antecedent.
Series-Qualifier Canon. When there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.
Nearest-Reasonable-Referent Canon. When the syntax involves something other than a parallel series of nouns or verbs, a prepositive or postpositive modifier normally applies only to the nearest reasonable referent.
In this post I’m first going to look at these canons fit in with the existing law and then at whether they hang together as a coherent set of principles. And since the post is a long one, here’s the executive summary: First, the canons as formulated in Reading Law differ from the existing law in some important ways. Second, they don’t hang together as a coherent set of principles.
Posted in Ambiguity, Bryan Garner, Canons of interpretation, Language mavens, Law, Law and linguistics, Liparota v. United States, Rule of the last antecedent, Scalia, Statutory interpretation, Syntactic