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Immediate thoughts on Noel Canning

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As Jonathan notes, the Supreme Court unanimously decided NLRB v. Noel Canning today, a decision that many of you have probably seen me blog about more than you wanted to. I’ll have more extended thoughts later, but for now, five quick observations:

1. In our amicus brief, Michael McConnell, I, and a group of other constitutional law scholars argued that no matter what your theory of constitutional intepretation, the recess appointments were invalid. Under the premises necessary to reject the originalist claims, one should have to accept the validity of pro forma sessions, and vice versa. I’m pleased to see that the opinions seem to bear out that observation, with all of the members of the Court converging on the outcome even as they disagree on the reasoning. (I can’t say that our brief deserves any credit for that, however. It was cited briefly by both sides, but only in the context of some historical quibbling about Andrew Johnson’s alleged intrasession recess appointments.)

2. The majority reached all three of the questions presented, even though it only needed to resolve the “pro forma” question in order to resolve the case. That seems to have surprised some observers. And while I can’t say I like what the majority had to say about all three of those questions, I think resolving all three was the right thing to do. As I discussed here, the circuit split over the other issues would have persisted without the Court’s ruling, and resolution of that split is important.

3. The majority appears to leave open “the separate question of whether
new offices are vacancies within the meaning of the Clause.” In other words, when Congress first creates an office that requires Senate confirmation, can the first person ever to hold that office be a recess appointee? In a well-researched student note in the NYU Law Review, Amelia Frenkel argues not: the word “vacancy” presupposes a previous occupation. I believe that issue would have been raised in the case of Richard Cordray, had the challenge been made during his recess appointment. It may still be made in the future.

4. The broader challenges to executive-branch recess appointments failed in this case. But I have to wonder, would the case ever have succeeded without them? After all, those are the arguments that originally persuaded the D.C. Circuit (and several other circuits) to invalidate the appointments. If the pro-forma argument was the only one in play, would the lower courts have been as moved by it as the majority was? And if no lower court had ever invalidated the recess appointments, would the Court have granted cert.? Of course I do not know, but I suspect the answers are no.

5. Justice Scalia quotes, at length (pp. 40-41), the 1863 Senate report rebuking the executive’s interpretation of the recess appointments clause. He says “[the majority] relegates the 1863 Judiciary Committee report to a pair of anodyne sentences in which it says only that the committee ‘dis­agreed with’ Wirt’s interpretation. (With like understatement, one could say that Shakespeare’s Mark Antony ‘disagreed with’ Caesar’s detractors.)” I’m glad to see the document get more attention. As I noted here, it may be one of the most neglected important documents about historical interpretations of the Recess Appointments Clause.

— I’ll have more to say about the bigger methodological questions about the role of practice and originalism separately, and a little later.