Congress on Recess: Noel Canning

By Tom Watts

Yesterday, the Supreme Court decided National Labor Relations Board v. Noel Canning, holding that President Obama’s NLRB appointees exceeded his recess appointments power due to the Senate’s pro forma sessions. For a summary of the decision, I suggest the excellent coverage on SCOTUSblog or Eric Posner’s piece for Slate (which also features his rendition of the Founders’ text messages — worth it for that alone). Interesting commentary can also be found in the Washington Post and the New Yorker.

Although the decision was unanimous in the judgment, the majority and concurrence read much like a traditional 5-4 decision, with the liberals and Justice Kennedy opposing the conservatives. Justice Scalia went so far as to read his concurrence from the bench. Dissenters occasionally do this (for example, Justice Stevens did so in Citizens United), but this was highly unusual for a concurrence. Eric Posner (linked above) described Justice Scalia as “blow[ing] a gasket.”

What made Justice Scalia so upset? His thoughts might be paraphrased by the wise words of Elie Mystal: “Not to sound like a Republican, but where is Breyer coming up with this ‘more than 3, less than 10’ rule? Like, what fu**ing penumbra did he pull that out of?” Of course, the answer is that it came out of long-standing executive branch interpretation, which this decision upheld.

This decision is a victory of living constitutionalism over originalism, made possible by Justice Kennedy siding with the liberals. Justice Kennedy cares about historical development of values and practices. In Noel Canning, Justice Breyer pointed to the extensive history of recess appointments occurring in intrasession recesses and to posts that had become vacant prior to the recess’s beginning. His enormous accumulation of facts was apparently convincing for the five Justices in the majority. (Less so for Justice Scalia.)

This is a specific type of living constitutionalism, however. Justice Scalia called relying on the practice and interpretations of other branches an “adverse possession” theory of constitutional interpretation. In truth, the proper comparison is probably not to adverse possession but to stare decisis. That comparison may sound strange; this issue has never come before the courts before. Indeed, perhaps the most peculiar thing about Noel Canning to me, as a law student, is that the Recess Appointments Clause spent over 200 years not being litigated. It’s somewhat like the fact that the removal power escaped judicial interpretation until 1926. How can that be?

The answer is that it wasn’t until the twentieth century that the country began looking to the Supreme Court to answer hotly contested political issues. Tocqueville famously wrote about the United States in the 1830’s, “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question,” but he was probably exaggerating. Major political questions were decided by Congress in the eighteenth and nineteenth centuries. The contested elections of the nineteenth century — the elections of 1824 and 1876 — were decided by Congress. It was not until the contested election of 2000 that the Supreme Court was expected to resolve the matter. Why does the Constitution provide that the Senate tries impeachments? Federalist 65 answers by way of rhetorical question: “Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent?” (Clearly not the Supreme Court.)

In the past, the political branches were entrusted with questions like those presented in Noel Canning, and they reached an answer. The Supreme Court today decided to respect that answer, as if applying stare decisis to political branch answers to questions that have become judicial branch questions over time.

Justice Scalia is probably correct that Noel Canning’s respect for political branch practice is in tension with Chadha, which held unconstitutional a common practice that was about 50 years old. Distinctions could be drawn: perhaps the text was clearer in Chadha, or the political branch interpretation was more recent (legislative vetoes began in 1932). But I think the truth is that this court’s majority simply disagrees with the Chadha court’s majority about the proper way to approach questions formerly answered by longstanding political branch practice. Justice Scalia certainly has one method, but it’s a little hard to swallow. He wrote, “It is inconceivable that the Framers would have left the circumstances in which the President could exercise such a significant and potentially dangerous power so utterly indeterminate,” but I’m inclined to think that’s exactly what happened: they just didn’t think about the details until after ratification, at which point they disagreed. Nonetheless, I suspect that as long as we keep looking to the courts to answer more questions that were once decided by our elected representatives, the proper interpretation of past political branch practice will remain contested.

In practice, Noel Canning will have different effects than might have been anticipated when the case was first filed. The NLRB appointees were recess-appointed in early 2012 to avoid filibuster abuse, but in late 2013, Senate Democrats voted to reform the filibuster. Prior to filibuster reform, a president whose party had a majority in the Senate, but not a filibuster-proof supermajority, might use recess appointments to avoid the Senate. Today, that is not necessary, so the diminution of executive power that might have been anticipated in early 2012 will not actually follow from this outcome. Nonetheless, the result does weaken the recess appointment power in one way: if the president’s party does not have a majority in the Senate, Noel Canning endorses the Senate holding pro forma sessions to prevent recess appointments. Thus, the recess appointment power is nearly dead.

There is one exception, however. If the president’s party holds the House but not the Senate, the president may seek to exercise the adjournment power of Article II, Section 3, Clause 3. If that happens, it is sure to be challenged in court, and we can point back to Noel Canning as having set up that constitutional showdown.

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