By Tony Mauro

The upcoming U.S. Supreme Court argument over the president’s power to make recess appointments has sent lawyers and researchers hunting through centuries-old documents for historical evidence to prove just how broad or narrow the power is.

“It’s a bad case for anyone with allergies to dust mites,” John Elwood of Vinson & Elkins said.

But not to worry. Thanks to an innovative digital research project, lawyers can leave their antihistamines behind as they prepare briefs in the landmark case titled NLRB v. Noel Canning. “We deal with the dust mites so others don’t have to,” said Julie Silverbrook, executive director of The Constitutional Sources Project (ConSource). Along with its pro bono SCOTUSource project at Harvard Law School, ConSource is researching and digitizing a range of documents specifically related to Noel Canning.

By assisting the parties on both sides in cases like Noel Canning, the project aims to help the court get “the full narrative of the history behind a constitutional issue,” Silverbrook said. “We want to get at the parts of the story that may not be told because they are in documents sitting in the basement of some archive.”

Noel Canning, a family-owned Yakima, Wash., Pepsi bottler, was on the losing end of a ruling by a panel of the National Labor Relations Board, two of whose three members had been appointed by President Barack Obama during a brief Senate recess in early 2012.

The company appealed, asserting that the decision was invalid because the recess appointments were unconstitutional. The U.S. Court of Appeals for the D.C. Circuit agreed, and the government appealed to the Supreme Court.

As the case nears the argument date of Jan. 13, a main focus of the briefing is the early meaning of the Constitution’s recess-appointment clause, which gives the president “power to fill up all Vacancies that may happen during the Recess of the Senate.” Does “happen” mean just the vacancies that begin during a recess, or does it include vacancies that already exist when a recess begins? And what kind of recess? Does a brief intrasession recess qualify, or does “the recess” mean just the official recess between sessions?

“We had to do a significant amount of historical research,” said Jones Day partner Noel Francisco, who represents Noel Canning. “Particularly for cases like this one, where founding-era history is important, online resources are of enormous value to lawyers and judges alike.” He cited a ConSource document in his main brief.

DIGITAL LIBRARY

One historical artifact that both sides have mentioned is a 1792 letter by Attorney General Edmund Randolph. Randolph opined that President George Washington could not appoint the “chief coiner of the mint” during a Senate recess because the vacancy occurred before the recess. Critics of Obama’s appointments cite the letter frequently, but Solicitor General Donald Verrilli Jr. in his brief argued that, in spite of the letter, Washington made several recess appointments that began before Senate recesses.

ConSource has highlighted an earlier letter by Randolph, written when he was governor of Virginia and a delegate to the constitutional convention. His October 1787 letter to the speaker of the Virginia House of Delegates cited the recess power as one of several features of the document that gave the president too much power, and prompted Randolph to decide not to sign the Constitution. By the time Virginia had to vote for or against ratification, Randolph changed his mind and urged ratification.

“We came across a number of things that hadn’t been cited, and we were surprised,” said Dallas lawyer Carl Cecere, who works with ConSource. One lesson learned from the project is that many documents that have been around for more than 200 years have not been fully plumbed for their value in seemingly unrelated subject areas. Digitizing the content in searchable ways has made it easier to make those kinds of connections.

That function came into play in a brief filed by the Constitutional Accountability Center on behalf of Harvard Law School professor Lawrence Lessig in the pending case McCutcheon v. Federal Election Commission, a test of federal limits on campaign contributions. Using ConSource’s digital library, Lessig’s researchers searched for every use of the word “corruption” to show that the founders viewed corruption of government institutions as a major concern. The brief referred the court to a Tumblr database — a Supreme Court first — categorizing how the word was used.

“ConSource has created an interactive treasure trove of documents crucial to understanding our Constitution’s meaning,” said Elizabeth Wydra of the Constitutional Accountability Center, counsel of record in the Lessig brief. “As someone who spends a lot of time reading documents from the 18th and 19th century, I appreciate that ConSource transcribes the writings, while allowing, in many instances, a view of the original document. I’m grateful for the decrease in eye strain.”

ConSource’s next project sounds like an originalist’s dream: working with the Library Company of Philadelphia to digitize materials from the library that the framers used during the constitutional convention. “We might find some annotations from the founders in the margins,” Silverbrook said. Imagine what the justices would do with those.