Evans v. Stephens, No. 02-16424.

• Citation: 387 F.3d 1220
• Decision Date: 14 October 2004
• Docket Number: No. 02-16424.
• Parties: Peter EVANS, Detree Jordan, Plaintiffs-Appellees, v. Denis STEPHENS, Defendant-Appellant, United States of America, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

387 F.3d 1220

Peter EVANS, Detree Jordan, Plaintiffs-Appellees, v. Denis STEPHENS, Defendant-Appellant United States of America, Intervenor.

No. 02-16424.

United States Court of Appeals, Eleventh Circuit.

October 14, 2004.

Richard A. Carothers, Thomas M. Mitchell, Carothers & Mitchell, LLC, Buford, GA, for Defendant-Appellant.

Dovre Christian Jensen, Clark E. Gulley, Foster, Jensen & Gulley, LLC, Norman J. Slawsky, Jacobs, Slawsky & Barnett, P.A., Atlanta, GA, Thomas F. Richardson, Norman Carter Pearson, III, Chambless, Higdon & Carson, LLP, Macon, GA, Laurel E. Henderson, Laurel E. Henderson, P.C., Decatur, GA, for Evans, Jordan, City of Zebulon, GA and Loomis.

Thomas Summers Hale, Scott Wayne Gosnell, Burgess & Hale, L.L.C., Birmingham, AL, Terry Eugene Williams, Jason C. Waymire, Terry E. Williams & Associates, Lawrenceville, GA, Mark R. Brown, Capital University Law School, Columbus, OH, Thomas C. Goldstein, Amy Howe, Goldstein & Howe, P.C., Stuart J. Roth, Jay Alan Sekulow, American Center for Law & Justice, Richard A. Samp, Washington Legal Foundation, Washington, DC, Scott Dewitt Delius, Delius Law Firm, P.C., Atlanta, GA, A. Jonathan Trafimow, Robert S. Groban, Jr., Epstein, Becker & Green, P.C., New York City, Martin S. Lederman, Bethesda, MD, Laurence Henry Tribe, Harvard Law School, Cambridge, MA, for Alabama Municipal Ins. Corp., Alabama League of Municipalities, Russell Gosnell, ACLU of Florida, Inc., Jennie Clouatre, Senator Edward M. Kennedy, Joshua Highfill, Rick Moore, Brian Ausburn, ACLU of Georgia, Inc, ACLU of Alabama, Inc., Janet Hicks, Edwin Meese, American Center for Law and Justice, Washington Legal Foundation and County of Orange in New York, Amici Curiae.

Douglas N. Letter, U.S. Dept. of Justice, Appellate Litigation Counsel, Civ. Div., Washington, DC, for Intervenor.

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES^*, BARKETT, HULL, MARCUS, WILSON and PRYOR^*, Circuit Judges.

ORDER

EDMONDSON, Chief Judge:

Between the twelfth and twenty-third of February 2004, the United States Senate took a break in their Session. 150 Cong. Rec. S1414-04 (daily ed. Feb. 12, 2004) (statement of Sen. Frist) ("I wish everyone a safe President's Day recess"); 150 Cong. Rec. S1415-02 (daily ed. Feb. 12, 2004) (statement of Sen. Frist) ("the Senate, at 8:49 p.m., adjourned until Monday, February 23, 2004"). During that break, on 20 February 2004, the President appointed William H. Pryor Jr. to the Eleventh Circuit Court of Appeals. The President relied on the Recess Appointments Clause. U.S. Const. art. II, § 2, cl. 3. In this case, plaintiff-appellees by a timely written motion challenge the authority of Judge Pryor to act as a United States Circuit Judge.¹ We conclude that the President's appointment was not beyond his constitutional power.

The Judicial Branch is the controlling interpreter of how the Constitution applies. But the President, in his capacity as chief executive of this country, is also sworn to uphold the Constitution. And when the President is acting under the color of express authority of the United States Constitution, we start with a presumption that his acts are constitutional.² See United States v. Allocco, 305 F.2d 704, 713 (2d Cir.1962) (Recess Appointments Clause case); see also U.S. v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 3105, 41 L.Ed.2d 1039 (1974) (observing "In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others."). To be sure, the presumption is a rebuttable one; but the burden is on the challengers to overcome it with their arguments and to persuade us to the contrary. Just to show that plausible interpretations of the pertinent constitutional clause exist other than that advanced by the President is not enough. We are not persuaded that the President acted beyond his authority in this case: both the words of the Constitution and the history of the nation support the President's authority.

Recess Appointments to Article III Courts are Allowed

We focus mainly on what the Constitution says and does not say. The text of the United States Constitution authorizes recess appointments of judges to Article III courts.³ Article II, Section 2 Clause 3 of the United States Constitution specifically says "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." The term "Vacancies" refers to the offices listed in the preceding clause: "Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law." In other words, Clause 2 explains the appointments the President may make with Senate advice and consent; Clause 3 explains the President may make temporary appointments to "all" of these offices without Senate advice and consent. Recess appointments to the judiciary are allowed: one of the offices specifically mentioned is "Judges of the supreme Court." Appointments of United States Circuit Judges are covered. See The Federalist No. 78, at 522 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (noting that judges are to be appointed in the same manner as executive officers: "the officers of the union in general ..."); The Federalist No. 67, at 455 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (noting that the term "Vacancies" must "be construed to relate to the `officers' described in the preceding [clause]").

History unites with our reading to support our conclusion. As we understand it, beginning with President Washington, over 300 recess appointments to the federal judiciary (including fifteen to the Supreme Court) have been made. Historical evidence of this practice alone might not make the recess appointment constitutional, but this historical practice—looked at in the light of the text of the Constitution— supports our conclusion in favor of the constitutionality of recess appointments to the federal judiciary. See generally Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 3335, 77 L.Ed.2d 1019 (1983) (observing that historical practice of Framers "sheds light" on the intended meaning of constitutional provisions).

Although we see some tension between Article III and the recess appointment of judges to Article III courts, we reject the argument that the language in Article III, saying that judges serve during "good Behaviour" and without a diminished salary, somehow trumps the Recess Appointments Clause. The conflict between these equally important constitutional provisions is not irreconcilable: the temporary judges appointed under the Recess Appointments Clause are an exception to the general rule of Article III. The text of the Recess Appointments Clause refers specifically to "all" vacancies: we accept that the Clause does not leave out Article III judicial vacancies.⁴

The Constitution, on its face, neither distinguishes nor limits the powers that a recess appointee may exercise while in office. That is, during the limited term in which a recess appointee serves, the appointee is afforded the full extent of authority commensurate with that office. For those who fear judicial recess appointments because the appointments bypass the Senate completely, we stress the obvious: the temporary judges lose their offices at the end of the Senate's next Session.

We accept that it was the intent of the Framers to keep important offices filled and government functioning.⁵ And while recess appointees may not have every bit of the protection for their independence that regularly confirmed Article III judges have, we accept the Framers thought that what might be intolerable, if prolonged, was acceptable for a relatively short while.⁶ And, of course, plenty of the judges in this country (for example, state judges) then and now do not have all the protection of Article III judges; yet these courts are not seen to be inherently unfair, and the litigants who appear before them have not been held to have been denied due process on that account. So, we can readily accept that the Framers would tolerate, on a temporary basis, some federal judges who lacked Article III protection.

The Second and Ninth Circuits, in reasoned opinions, have also decided that the Recess Appointments Clause reaches appointments to Article III courts. United States v. Woodley, 751 F.2d 1008 (9th Cir.1985) (en banc); United States v. Allocco, 305 F.2d 704 (2d Cir.1962).

"The Recess of the Senate" Includes an Intrasession Recess

Focusing first on the language of the Constitution, and then on the nation's history and on the purpose of the Recess Appointments Clause, we also conclude that President Bush appointed Judge Pryor during a legitimate Senate recess, that is, during a "Recess" within the meaning of the Recess Appointments Clause. In this case, the Senate's break fits the definition of "recess" in use when the Constitution was ratified: the dictionary definitions that have been called to our attention (or that we have found) did not, for example, speak of a minimum time. See, e.g., A Dictionary of the English Language (1755) (reprinted 1967) (defining "recess" as "retirement; retreat; withdrawing; secession" or "remission and suspension of any procedure"). And the text of the Constitution does not differentiate expressly between inter- and intrasession recesses for the Recess Appointments Clause.

The challengers have used both history and textual analysis to support their contentions that the ten- or eleven-day break in the Senate's Session that underlies Judge Pryor's appointment was not a "Recess" within the meaning of the Recess Appointments...