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Does James Monroe’s Presence at the Virginia Ratifying Convention Shed Light on the Meaning of the Recess Appointments Clause?

More from the Noel Canning argument: No doubt much to her surprise, Beth Brinkmann was questioned intensively about the meaning of the phrase “which may happen” in the Recess Appointments Clause. Both Judge Sentelle and (to a lesser extent) Judge Griffith were unimpressed by the longstanding executive branch position, dating back to Attorney General Wirt in 1823, that this phrase means vacancies that “happen to exist” during the recess.

In response, Brinkmann pointed out that Wirt was advising President Monroe, whom she identified either as a “framer” or a “founder” (I can’t remember which) of the Constitution.  This fact, she suggested, bolstered the credibility of Wirt’s interpretation.

Monroe was not at the 1787 Philadelphia Convention, but he was a delegate to the Virginia convention that ratified the Constitution. Monroe voted against ratification, contending that it gave the federal government too much power. I am fairly sure that there is no evidence of Monroe expressing any view about the RAC at the ratifying convention and, for that matter, I am not aware of Monroe commenting on the RAC at any time in his life.

So what are we to make of the fact that, more than 30 years after the drafting and ratification of the Constitution, Monroe received an opinion from his Attorney General that the RAC applied to all vacancies that “happen to exist,” rather than only those that “happen to arise,” during the Senate’s recess? By Wirt’s own admission, his interpretation relied on the “reason and spirit” of the Constitution, while the contrary interpretation was more consistent with its “letter.” Moreover, although not mentioned (and possibly not known) by Wirt, there were at least two actual framers, Edmund Randolph and Alexander Hamilton, who made far more contemporaneous statements in support of the “happen to arise” interpretation.

Presumably Brinkmann is claiming that if Wirt’s interpretation had been wrong, Monroe would have rushed into Wirt’s office saying something like the following: “Bill- even though I voted against ratifying the Constitution because it gave too much power to the central government, I specifically remember thinking ‘thank goodness it doesn’t give the president the power to circumvent the Senate whenever it fails to confirm his nominees.’ Now take this opinion back and redo it. And by the way, you might want to consider whether joining the Freemasons is a good career move.”

I’d say the probative value of this “evidence” is between slim and none. And Slim’s out of town.

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