After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession

The Supreme Court’s decision last Term in NLRB v. Noel Canning contains an especially strong and sustained endorsement of the relevance of historical practice to discerning the Constitution’s distribution of authority between Congress and the President.1 In interpreting the scope of the Recess Appointments Clause,2 the Court gave significant attention to how governmental actors had understood and applied the Clause throughout history.The Court did so, moreover, as part of a self-conscious approach to constitutional interpretation.When construing“constitutional provisions regulating the relationship between Congress and the President,” the Court explained, “great weight” should be given to “‘[l]ong settled and established practice.’”3 In large part because of the practice, the Court concluded that the Recess Appointments Clause conferred broad recess appointments authority upon the President.The Court invalidated, however,the particular appointments at issue in the case, which in the Court’s view lacked historical support. The Court was unanimous as to the result, but four Justices concurred only in the judgment.4 Writing a de facto dissent for that group, Justice Scalia objected, first,to the way in which the majority had relied on historical practice. He accepted that “where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision.”5 In this case, however, Justice Scalia argued that the relevant text was clear, and that the historical practice relied upon by the majority neither dated to the early days of the Republic nor was uncontested. Justice Scalia also characterized the majority as applying “an adverse-possession theory of executive power,” which he feared would “have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers.”6 The majority, by contrast, invoked James Madison for the proposition that the meaning of some constitutional provisions could be “liquidated” through “a regular course of practice” after the constitutional Founding, and it contended that “our cases have continually confirmed Madison’s view.”7 The majority did not explain the contours of this “liquidation” concept,however,and its reasoning about the scope of the Recess Appointments Clause seemed to be based on a potentially distinct and broader concept of “historical gloss”—a concept most famously articulated by Justice Frankfurter in his concurrence in the Youngstown steel seizure case.8 Indeed, judging from the way in which the concept of liquidation has been developed by originalist scholars, it would seem to accord more closely with Justice Scalia’s views in Noel Canning than with those of the majority. Justice Scalia also disagreed with the majority about the clarity of the relevant constitutional text. Justice Scalia and the majority did agree that if the text of the Recess Appointments Clause was clear, it controlled the out come regardless of other considerations. The majority maintained, however, that “the Clause’s text, standing alone, is ambiguous,”9 and that it was therefore appropriate to consider other sources of constitutional authority, including historical practice. Justice Scalia, by contrast, argued that the text was clear, and he insisted that “[t]he historical practice of the political branches is, of course, irrelevant when the Constitution is clear.”10 This Article engages these two disputes in Noel Canning by examining the relationship between interpretive methodology and historical practice, and between historical practice and textual ambiguity. We begin in Part I by describing the historical background and issues in Noel Canning. In the next two Parts, we consider the relationship between historical practice and constitutional methodology. In Part II, we explain how a reliance on historical practice fits with various non-originalist and originalist approaches to constitutional interpretation. In Part III, we critique the idea of “liquidation” of constitutional meaning to the extent that it is something separate from—and narrower than—reliance on historical gloss more generally. We turn in Part IV from the relationship between methodology and practice to the relationship between practice and ambiguity. We explain that historical practice was relevant not only to the majority’s effort in Noel Canning to resolve perceived ambiguities in the constitutional text, but also to the majority’s very perception of ambiguity in the first instance. As a result, the decision is an example of how the constitutional text is often interpreted through a process that we have described elsewhere as “constructed constraint. ”11 Finally, in Part V we assess Justice Scalia’s contention that crediting historical gloss licenses a form of adverse possession by the President. We conclude that Justice Scalia’s analogy to adverse possession usefully suggests caution in crediting historical practice,but that the analogy obscures more than it clarifies because it misses critical differences between the values underlying the adverse possession doctrine in property law and those animating a historical gloss approach to the separation of powers.In responding to Justice Scalia, we also offer thoughts on how best to define a historical gloss approach, including how to specify its limits