RUTHFULLY YOURS

In October 2013, a reporter asked Justice Antonin Scalia what he thought about the government shutdown. The gregarious justice replied, “I have a deal with the Congress. I leave them alone. They leave me alone.” He was exactly right. The monastic Supreme Court is formally isolated from the political process in all respects, but one — the appointment process. Long before they enter the marble palace, judicial nominees must run a political gauntlet that the Constitution itself has erected. The president has the duty to appoint officials — he “shall nominate . . . judges of the Supreme Court.” But the executive has this power only “by and with the Advice and Consent of the Senate.” Critically, the Senate is under no obligation to give the authority to the president.

This disjunction — the president shall nominate, but the Senate does not have to confirm — activates the very sort of structural bulwarks that the Framers hardwired into the Constitution. The Supreme Court’s unanimous 2014 decision in National Labor Relations Board v. Noel Canning reaffirmed this foundational lesson: When there is inter-branch disagreement that cannot be resolved through the political process, no nominee can be confirmed. Justice Scalia’s prescient concurring opinion in that case reminds us that senatorial refusal to confirm is not an unforeseen flaw but an intentionally designed feature of the Constitution. This is true even where it frustrates the orderly functioning of the federal government.

The case began in 2011 when Senate Republicans blocked a vote on President Obama’s nominees to the National Labor Relations Board. Without new appointees, the NLRB would lose its quorum and its ability to issue decisions. Faced with a political problem that called for a political solution, the president turned to an unconstitutional shortcut: Although the Senate had not gone on recess, Obama acted as if it had. During a 72-hour window between pro forma sessions on January 3 and January 6, 2012, the president deemed the Senate in recess and made three appointments to the NLRB.

The Supreme Court unanimously rejected the president’s legal defense of his action and found that the recess appointments were unconstitutional. But all nine justices went even further than that, specifically refuting the president’s argument that gridlock justified his breach of the separation of powers. During oral arguments, Solicitor General Donald H. Verrilli, the administration’s top lawyer, argued that the president’s decision to disregard the pro forma sessions was justified as a “safety valve” in response to “congressional intransigence.” If the president did not make the recess appointees, “the NLRB was going to go dark,” Verrilli said. “It was going to lose its quorum.”

There’s talk of Obama making a recess appointment to the Supreme Court if the Senate doesn’t act. Here though is what Justice Scalia thought of Obama’s abuse of recess appointments on the NLRB.

And as usual, he didn’t mince words.

“The Court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates,” Justice Scalia wrote.

“What does all this amount to? In short: Intra-session recess appointments were virtually unheard of for the first 130 years of the Republic, were deemed unconstitutional by the first Attorney General to address them, were not openly defended by the Executive until 1921, were not made in significant numbers until after World War II, and have been repeatedly criticized as unconstitutional by Senators of both parties.”

“Moreover, the majority’s insistence that the Senate gainsay an executive practice “as a body” in order to prevent the Executive from acquiring power by adverse possession, ante, at 14, will systematically favor the expansion of executive power at the expense of Congress.”

“In 1792, Attorney General Edmund Randolph, who had been a leading member of the Constitutional Convention, provided the Executive Branch’s first formal interpretation of the Clause. He advised President Washington that the Constitution did not authorize a recess appointment to fill the office of Chief Coiner of the United States Mint, which had been created by Congress on April 2, 1792, during the Senate’s session.”

“A statute passed by the First Congress authorized the President to appoint customs inspectors “with the advice and consent of the Senate” and provided that “if the appointment . . . shall not be made during the present session of Congress, the President . . . is hereby empowered to make such appointments during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” That authorization would have been superfluous if the Recess Appointments Clause had been understood to apply to pre-existing vacancies.”

“More fundamentally, Wirt and the majority are mistaken to say that the Constitution’s “ ‘substantial purpose’ ” is to “ ‘keep . . . offices filled.’ ”. The Constitution is not a road map for maximally efficient government, but a system of “carefully crafted restraints” designed to “protect the people from the improvident exercise of power.”

“There are many circumstances other than a vacancy that can produce similar inconveniences if they arise late in the session: For example, a natural disaster might occur to which the Executive cannot respond effectively without a supplemental appropriation. But in those circumstances, the Constitution would not permit the President to appropriate funds himself. Congress must either anticipate such eventualities or be prepared to be haled back into session. The troublesome need to do so is not a bug to be fixed by this Court, but a calculated feature of the constitutional framework. As we have recognized, while the Constitution’s government-structuring provisions can seem “clumsy” and “inefficient,” they reflect “hard choices . . . consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked.”

Even in death, he always had the last word. As debate over a possible recess appointment to the Supreme Court by Obama continues, Justice Antonin Scalia had already made the case against it.

“The court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future presidents against future Senates,” Justice Scalia wrote in his usual unsparing language in NLRB v. Noel Canning.

And, as always, he took the side of the Constitution over everything else indicting the court for casting “aside the plain, original meaning of the constitutional text in deference to late-arising historical practices”. In clear and forceful language, he warned that “the Constitution’s core, government-structuring provisions are no less critical to preserving liberty than are the later adopted provisions of the Bill of Rights” in maintaining “the “enduring structure” of constitutional government”.

To Justice Scalia, liberty meant limiting the powers of government by maintaining the Constitution. A recess appointment, the topic revived by his passing, is as grave a threat to liberty as a violation of the First Amendment. He was convinced that government breaking its constitutional chains was the true threat to liberty. Attacks on the First or Second Amendment were symptoms of that larger problem.

Often outnumbered, but never outwitted, Justice Scalia saw government as a monster that the Founders had chained with manacles made of words. His task was reforging them with his voice and pen.

Leftist judges and lawyers love to style themselves as defenders of civil rights, but their idea of civil rights is providing unlimited power to government. Justice Scalia was an actual believer in civil rights. Unlike the activist leftist judges to whom the law is merely a means to a leftist end, dressing up their usurpation of power under the mocking name of “Living Constitution”, he was an Originalist who truly fought for civil rights every time he fought for the truth of the word of the law over the power of men.