[This post has been revised; see my note at the bottom.]
The post before this one, dealing with the dueling canons in Lockhart v. United States, was my first after a gap of more than two years. In my last post before that gap, I wrote about an amicus brief I had just filed in the Supreme Court in Nassar v. University of Texas Southwestern Medical Center. The brief dealt with the meaning of the construction because of X. Specifically, it dealt with whether that construction incorporates the notion of but-for causation as part of its meaning. My brief argued that it does not.
The Supreme Court had previously reached the opposite conclusion, in a case involving the Age Discrimination in Employment Act: Gross v. FBL Financial Services. In Nassar, the question was whether the holding in Gross should be extended to a different statute that similarly used the formulation because of X. I argued that the Court should not follow Gross because Gross had been wrong about what because means. Some might regard such an argument as quixotic; I preferred to think of it as audacious.
The core of my argument was based on real-world sentences like Example (1) (emphasis added):
(1) The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.
I filed another amicus brief in the Supreme Court last week that I regard as an example of using linguistics in legal argument. Although the brief contains no discussion of linguistics, it was enabled by the fact that I have learned, to a certain extent, how to think like a linguist.
The case is University of Texas Southwestern Medical Center v. Nassar, and it deals with employment discrimination. The linguistic issue that the brief deals with is the interpretation of prohibitions against discrimination “because of [the employee’s] age” or “because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” In particular, does the use of the word because in these provisions require the plaintiff to prove that the prohibited factor was what’s known in the law as a “but for” cause of the adverse action? Or is it enough for the plaintiff to prove that the prohibited factor was one of several motivations for the action, any one of which would have been sufficient on its own?
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 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 lexicography, Definiteness, Dictionaries, Indeterminacy, Law & linguistics, Noel Canning v. NLRB, Recess Appointments Clasue, Semantics, Textualism, Underspecification, Words
(This post takes off from the post about Stephen Mouritsen’s article, so read that one first.)
Having complied with the suggestion above, you will recall that Judge Frank Easterbook—one of textualism’s leading theoreticians—said this:
The Supreme Court has decided FCC v. AT&T, the most recent case in which I filed an amicus brief, which I wrote about here. The issue in the case is whether corporations are protected by the “personal privacy” exemptions in the Freedom of Information Act, and the Court unanimously ruled that (as my brief had argued) they are not. The decision is available here.
In my unbiased opinion, the opinion was influenced by the brief in several respects.
I didn’t intend for the first substantive post here to be devoted to shameless self-promotion, but it’s not every day that a Supreme Court justice gives you a shout-out during an oral argument.