originalism on trial

There is a school of judicial interpretation called "originalism."  Adherents claim that the Constitution should be interpreted solely by reference to its particular words and the meaning those words held at the time of ratification. Justice Antonin Scalia is perhaps the best known originalist, though even he sometimes accepts stare decisis, the view that over time some issues become settled over time, even if contrary to a current reading of original meaning and intent, and the weight of precedents should stand.

A 3-judge appeals court panel on Friday ruled that "recess appointments" made by President Obama to the National Labor Relations Board were invalid because they did not occur when the Senate was in "the Recess" between multi-month-long sessions. Despite numerous other legal opinions over the years, many of which defined the "recess" as more than 3 days, the appeals court ruled that the clear language of the Constitution and early precedents permitted such appoints only during that time window between sessions. The judges argued that the use of the definite article -- "the Recess" -- meant that the Framers contemplated a single occasion each Congress.  Two of the three judges also held that the word "happen" meant that recess appointments could only be made for positions that fell vacant during "the Recess" and not for positions that went vacant when the Senate was in session.

This is originalism pure and simple. The matter is likely to be appealed to the Supreme Court, which is likely to take it to resolve the differing rulings already among federal district courts. The ruling is fun to read because of its logical elegance and elevated pedantry. Most puzzling to me, however, is the claim [on page 20] that prior to 1947 there were only three cases of intrasession recess appointments, and none before 1867, thus suggesting that everybody agreed with their originalist interpretation. That's not what this CRS Report says, citing numerous recess appointments starting with George Washington. See also the Office of Legal Counsel's memo for the Obama Administration.

I'm not a lawyer, but I do think the weight of historical practice and legal precedent should prevail over tortured readings by originalists. I'm  more comfortable with a ruling that appointments can be made if the Senate is out for more than three days, and that there should be some business on each third day. Let's see what the Supreme Court decides.