The Supreme Court argument in NLRB v. Noel Canning is on Monday, 1/13.
Michael McConnell comments in the form of a model judicial opinion (affirming), at the Washington Legal Foundation website. Sidney Rosdeitcher (Brennan Center) dissents. I usually agree with Professor McConnell on originalism matters, and I mostly agree here, but I do not agree that the constitutional term “recess” is ambiguous. As set forth in the originalist scholars’ brief, “recess” as used in the Constitution means the time between legislative sessions. It’s true that there was an alternate eighteenth-century definition of “recess” meaning any break in legislative business (even a lunch break), but that definition would be absurd in the recess appointments clause and no one (not even the government) argues for it.
Eric Posner comments at Slate, in a piece that’s an extended criticism of originalism. (Thanks to Michael Perry for the pointer).
At the Constitutional Accountabilty Center, Elizabeth Wydra lists Four Reasons Why Noel Canning Matters in a Post-Nuclear World.
I’ve mostly said all I have to say in the brief, and my interest in this case is the Constitution’s original meaning, not necessarily what that should mean in the modern world. I’m struck, though, how weak the modern policy arguments for the appointments are.
One is that the President needs unilateral appointments power because sometimes the Senate is unable to confirm nominees, and that while this may be the case for vacancies that arise (“happen”) during the intercession break (the “recess”), it might also be true for other vacancies. Therefore, it is said, “happen” and “recess” should not be read narrowly. But as Mike Rappaport points out in his recent article Why Nonoriginalism Does Not Justify Departing from the Original Meaning of the Recess Appointments Clause, the modern Senate is unavailable for much shorter periods of time than it was in the eighteenth century. The framers were concerned about breaks of six to nine months. Congress is now rarely out of town for even a month. It’s hard to see how, in the ordinary course, a month-long vacancy is a big deal, especially when the executive branch nominating process itself typically takes longer than that and acting appointments are generally available to fill the gaps. Modern conditions greatly reduce the need for unilateral presidential appointments.
The second argument is that President needs unilateral appointments power because sometimes the Senate is unwilling to confirm nominees and thus the President needs a way to end-run the confirmation process. This is a much more honest argument, particularly since this is obviously what is at stake in Noel Canning itself. But this also more transparently an argument to re-write the Constitution. The framers understood that placing appointments power jointly in two entities, the Senate and the President, would sometimes slow the process and result in lengthy vacancies when the two could not agree. They understood that the Senate could and sometimes would refuse confirmations. That was a cost — but the benefit was the separation of powers and the check on executive power from the Appointments Clause. In the Constitution’s text, the framers struck the balance between these costs and benefits one way. Some people today think it should be struck in a different way, to enhance presidential power. But let’s not pretend this is interpreting the Constitution. It is substituting a new rule.
Under the rule proposed by the Solicitor General in Noel Canning, the President could unilaterally fill any vacancy (no matter when it arose) if the Senate was unavailable for three days (and it’s not even clear that he regards the three-day limit as a firm one). In effect, that means the President can unilaterally fill any vacancy. Perhaps that’s a workable rule in the abstract (especially if limited to executive branch appointments and not judges, which it couldn’t be here without even more drastic rewriting). But it’s hard to see any pressing need for it. Modern government has hardly been hobbled by vacancies.
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.