Judge Duncan on the Influence of Customary Practice on Constitutional Interpretation

As has been widely reported, the United States Court of Appeals for the Fourth Circuit yesterday in a divided decision held that President Obama violated the Recess Appointments Clause of the Constitution in appointing three people to the National Labor Relations Board on January 4, 2012–that is, “intra-session,” during the Senate’s session beginning January 3, 2012. Judges Hamilton and Duncan held that “the Recess” in the Recess Appointments Clause of the Constitution (Article II, section 2, clause 3) means only the period between the two discrete sessions of the Senate, and that the President therefore may only use his powers under the Recess Appointments Clause inter-session. Judge Diaz dissented. The Fourth Circuit’s holding on this issue matches the holding of the United States Court of Appeals for the District of Columbia Circuit in NLRB v. Noel Canning, which will be heard by the Supreme Court next term.

What does all of this have to do with law and religion? Well, not too much. But there is a very interesting set of observations in Judge Duncan’s brief concurring opinion which does make a connection (beginning at page 126). Here’s Judge Duncan:

Historical practice in the decades following ratification of the Constitution is similarly sparse, and too easily subject to manipulation by “savvy lawyers,” as the dissent rightly notes. Diss. Op. at 147. Nor is it obvious how the uptick in intrasession recess appointments since 1981 ought to affect our analysis. Compare Marsh v. Chambers, 463 U.S. 783, 792 (1983) (upholding the practice of beginning legislative sessions with a prayer because its long history of use had made it “part of the fabric of our society”),with INS v. Chadha, 462 U.S. 919, 944 (1983) (observing that the increased frequency of the Congressional veto in statutes “sharpened rather than blunted” the judicial inquiry).

The questions Judge Duncan is asking are extremely difficult in constitutional law, and they are lots of fun to pose to students: what is the strength of custom or practice in constitutional interpretation? Should a long-standing practice which the government has engaged in for many years render the practice more likely or less likely to be constitutional? Or should the customary nature of a practice have no effect on constitutionality at all?

What makes Judge Duncan’s choice of examples particularly neat is that the issue of the constitutionality of legislative prayer (as readers of the Forum will know) is also on the Court’s docket next term in Town of Greece v. Galloway. And yet another interesting feature of the juxtaposition of Marsh v. Chambers and INS v. Chadha–which seemingly take different views of the influence of custom on constitutional interpretation–is that Chief Justice Warren Burger wrote the majority opinion for the Court in both cases.

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