The Recess Appointments Clause (Part 1)

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.

The issue

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.

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Always speaking?

I have an article coming out (link) in the Canadian Journal of Linguistics, in a special issue on time and modality in legal language. The title is “Always speaking”? Interpreting the present tense in statutes. Here’s the abstract:

This article takes a critical look through the lens of linguistics at the “always-speaking” principle in law — an influential principle that is recited in materials on legislative drafting as the justification for using the present tense, adopted in many common-law jurisdictions as a principle of interpretation, and accepted as a foundation for the linguistic analysis of the use of tense in statutes. The article concludes that the principle is an inadequate basis for interpreting or analysing statutes, for at least two reasons: (i) the interpretive results that the principle is intended to support are explainable in terms of widely accepted principles in the analysis of tense, without any need to posit special principles that apply only to statutes; and (ii) the interpretations that would be required if the always-speaking principle were taken seriously would in many cases probably be regarded as unnatural by native speakers of English.

Last antecedents, series qualifiers, and psycholinguistics

In my post Three syntactic canons, I discussed the three canons of interpretation in Scalia and Garner’s Reading Law that deal with syntactic ambiguities:

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.

At the end of the post, I raised the question whether the preferences stated in these canons can be justified on purely linguistic grounds—i.e., whether they represent “valid generalization[s] about how expressions in English are understood[.]” I’m going to try to answer that question here.

This post is a long one, so let me say up front that the verdict on these canons is a mixed one. The good news is that in some categories of cases where these canons apply, there is in fact a linguistic justification for applying them, by which I mean that in those applications the canons more or less parallel one of the recognized tendencies in how people process and comprehend sentences. (The same parallel applies to the rule of the last antecedent as it’s generally applied by the courts, which differs somewhat from the Scalia–Garner version).

Now the bad news. First, the processing tendency that I’ve referred to is just one of the factors that  influences how a given sentence is understood, and other factors can exert an influence in a different direction. So even in cases where the canons are consistent with this processing tendency, it’s hard to say in advance whether applying the canons would result in a linguistically justified interpretation.

Second, in the canons’ other applications, I don’t think there is the same parallel between the canons and the kinds of processing tendencies that I’ve referred to above. And more than that, in a large subset of those applications, the canons are actually inconsistent with what the literature on processing tendencies would predict. In those applications, therefore, there is reason to think that applying the canons would result in interpretations that are linguistically unjustified.

On to the details.

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On Garner on Posner on Scalia & Garner

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.
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“Arbitrarily reverse-engineering meaning”

At The Koncise Drafter, Ken Adams discusses the new Scalia/Garner book, looking at it from the point of view whose main interest is in drafting contracts:

My interest is drafting contracts, not interpreting them. But to stay out of trouble when drafting contracts, it helps to have a decent grasp of how judges ascertain the meaning of contract language. So I’m happy to have the book.

He has his doubts about whether textualism is an appropriate stance with respect to interpreting contracts:

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I am now the proud owner of the domain

This means that when you type in the URL of this site, you can omit the “.wordpress”. Or, if you prefer, you can omit the “wordpress.”. Think of all the time you’ll save!

However, if you’d rather give your fingers the additional workout, the old URL will still work.

Judicial Howlers: Ariad Pharmaceuticals, Inc. v. Eli Lilly & Co.

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.

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