My colleague Michael Devitt and I filed this amicus brief yesterday on behalf of an outstanding group of originalist scholars (plus me) in the recess appointments case, NLRB v. Noel Canning. We argue that under the Constitution’s original meaning, the Recess Appointments Clause — which allows the President to “fill up all Vacancies that may happen during the Recess of the Senate” — only allows the President to fill vacancies that arise between the Senate’s sessions. That is because the original meaning of “happen” is “arise” and the the original meaning of “the Recess” is the break between sessions. (The executive branch argues to the contrary that “happen” means “exist” and “the Recess” refers to any break in the Senate’s conduct of business — so that the President can unilaterally fill any vacancy that exists merely by waiting for the Senate to take a short break.)
Scholars joining the brief are me, my colleague and co-blogger Mike Rappaport, Randy Barnett (Georgetown), Originalism Blog contributor Chris Green (Mississippi), Gary Lawson (Boston University), John McGinnis (Northwestern) and Todd Zywicki (George Mason).
Though I have not confirmed it, I believe this is the first time that an amicus brief has been filed expressly as a “Brief of Originalist Scholars.”
RELATED: Larry Solum comments here on the possible relationship between the Noel Canning case and the elimination of the filibuster for most appointments — and also indicates agreement with our position on recess appointments as matter of original meaning.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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