Legal briefs

Crime

Aaron Guerrero and Noe Garcia each had corvettes. At 1:30 a.m. on August 28, 2022, they decided to race those corvettes along the streets of Chicago. They sped over 100 mph in 30 mph zones. At 65^th Street and Cicero Avenue, Guerrero was going 103 mph, he braked to take a turn, slowing to 81 mph, then sped up to 87 mph. It was at that speed he struck 41-year Shawman Meireis, killing her, in a crosswalk. She and a friend were making their way to their hotel after landing at Midway Airport. Guerrero’s car was incapacitated; Garcia fled the scene.

Guerrero and Garcia were charged with Reckless Homicide and Aggravated Street Racing. Recently, after pleading guilty, neither Guerrero nor Garcia received jail time. Instead, they were each sentenced to 30 months of probation and 300 hours of community service.

That just doesn’t seem right, does it? This sentence presents a good contrast between the rehabilitation criminal justice model and the retributive justice model. The retributive model would insist on punishment, in the form of incarceration, as recompense for the life lost. Retribution recognizes the harm to the victim and attempts to balance the scales. It’s a better model.

Textualism, originalism and the separation of powers

President-Elect Donald Trump has begun identifying people he plans to nominate to his cabinet upon taking office. Under Article II, Sections 2, Clause 2 of the U.S. Constitution, such cabinet officials must be confirmed by the Senate. The minority party of the Senate can use procedural tactics to slow down the confirmation process and thereby the new President’s agenda. Because of this, the idea has been floated that the Senate and President should utilize the recess appointment process to fill the cabinet. This process comes from Article II, Section 2, Clause 3 of the Constitution, which says, “The President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate...” Some argue the Senate should recess for the sole purpose of allowing Trump to fill all or most of his cabinet via recess appointment. There have been questions historically about whether the Recess Appointments Clause can be used in this way. Can it be used broadly for the sole purpose of circumventing the normal process, or is it limited to true emergencies occurring during an unrelated recess?

In Federalist 67, Alexander Hamilton describes the Recess Appointments Clause as “nothing more than a supplement…for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.” However, a relatively recent U.S. Supreme Court case appears to give President-Elect Trump authority to fill his cabinet in this way. In a bit of irony, the case comes from the left.

In NLRB v. Canning, then President Barack Obama moved to appoint three members of the National Labor Relations Board during a brief Senate recess. Two questions about this made their way to the Supreme Court. One was whether a brief recess of the Senate allowed a president to invoke the Recess Appointments Clause. The other was whether the phrase “happen during the recess” allowed appointments to vacancies existing prior to the recess, or only to vacancies that arose during the recess.

Liberal Justice Stephen Breyer wrote the Canning majority opinion. In an example of the Court making law rather than interpreting it, the court held that a recess less than ten days would be too short for a recess appointment, but longer than ten days is okay. The Court also held that “happen during recess” means vacancies occurring during or before the recess.

Conservative Justice Antonin Scalia took issue with the majority opinion in Canning. He wrote that:

The Court’s decision transforms the recess appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates. To reach that result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best. The majority’s insistence on deferring to the Executive’s untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a diminution of this Court’s role in controversies involving the separation of powers and the structure of government.

Now, with Trump set to stock his cabinet with recess appointments, the activist Canning court’s chickens are coming home to roost. Justice Scalia’s prediction is bearing out. This is a fine example of why courts should not make law, why they should honor the separation of powers, and why they should restrain themselves with textualism and originalism.   

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