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Noel Canning and Recess Appointments

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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21 Responses

  1. Brett Bellmore says:

    “The Senate would be shooting itself in the foot by adopting the position that the President could never make a recess appointment no matter what he offered in return.”

    What is he supposed to be offering in return for the power to appoint without Senate confirmation? Is it something he couldn’t openly offer for actual confirmation?

    Recess appointments should be utterly eliminated by amendment, they were meant to deal with a situation which simply doesn’t arise anymore.

  2. Brett Bellmore says:

    Oh, God, no! Not this site, too. Is there some kind of fad for reduced contrast text sweeping the web?

    I urge you to remember that not everybody has healthy eyes, and forswear ever using grey on grey text again.

  3. Shag from Brookline says:

    In Brett #1, speaking of shooting one’s own foot, his solution for recess appointments should apply equally to the Second Amendment.

    As to Brett’s #2, he and I rarely see eye to eye, but we share aging eyes that may make it difficult to see eye to eye. So the “eyes” don’t have it. But I wish Brett wouldn’t bring God into what may be a conspiracy aimed at him, or me, or both of us.

  4. Brett Bellmore says:

    Shag, any time the anti-gun community want to stop trying to get rid of the 2nd amendment by suborning judges, and try for an article V repeal instead, I will salute their honesty. While opposing it, of course.

  5. Shag from Brookline says:

    Brett’s:

    “While opposing it, of course.”

    could be by means of an anarcho-libertarian exercise of that Second Amendment “civil right” or “liberty” that ignores the historic “militia” of originalism that doesn’t arise anymore except in the mindlessness of Second Amendment yahoos.

  6. dht says:

    “…gives the Senate another bargaining chip…” The problem I see with this analysis is that the Senate is not really interested in bargaining. Filibusters, of both appointments and legislation, are largely done for purely political purposes, depriving the President of a victory, rather than any real attempt to bargain for something better.

    I also find pro forma sessions problematic. Since such sessions, more or less by definition, don’t accomplish anything, it becomes just another way to obstruct the smooth functioning of the government. In too many instances nominees for key positions, such as NLRB, are blocked not because the nominees themselves are unqualified, but because the blockers don’t like the agency in question at all. This becomes a form of statutory nullification, which I seriously doubt the founding fathers visualized when they created our current form of government.

    FWIW, I would propose eliminating the Senate altogether as a legislating body, and replace it with a conclave of governors of the 50 states, whose sole job is to approve appointments and treaties. Such a body would meet only for defined periods of time, so there would be no question of “recess” appointments.

  7. Brett Bellmore says:

    Now, THAT is a proposal I could get behind.

  8. Joe says:

    “In particular, I thought that Justice Breyer’s point that the Recess Appointment Clause was not meant to resolve political disputes was spot on.” I’d need to see the context. Whatever it “was meant,” the text can be used to resolve such a dispute if its terms are properly followed. If a bona fide recess appointment is used as a means to resolve the dispute.

    If the Senate is never really in recess, yes, it can prevent recess appointments. That too doesn’t win or lose the case for the President here (who personally rarely used recess appointments and the immediate reason he used them here was ultimately addressed in another way — so I question how much this case really matters to him) . The question is if they really did not go into recess. I think a reasonable argument can be made that declaring no business and functionally being in recess (as the argument goes) shouldn’t count. They actually have to do business.

    dht is mostly correct in my view though I don’t care for the proposal. Why governors should be relied upon to confirm federal officers is unclear to me. My proposal would be a time limit — confirmation is assumed w/o a clear majority vote blocking it.

  9. Brett Bellmore says:

    “Why governors should be relied upon to confirm federal officers is unclear to me.”

    That’s precisely what makes it a good idea: They couldn’t be relied on to confirm federal officers of the sort we get today. It’s a way of undoing the damage the 17th amendment did to the balance of power between state and federal governments.

    But a time limit, with abolition of recess appointments altogether, would address the immediate problem of a President who thinks Senators taking a potty break allows him to skip getting his nominees confirmed.

  10. Shag from Brookline says:

    Brett’s concept of a Senate “potty break” can result in chronic constipation of the Senate – and of the country’s business.

    The Governors is a dumb idea and not well thought out. But perhaps Brett’s engineering skills can come up with a proposed amendment to see if it can work and produce a few chuckles at the same time. Imagine a governor/candidate campaigning on how he/she would thwart the Executive. Of course, governors are elected by popular vote. But so are Senators thanks to the 17th Amendment.

  11. Joe says:

    “That’s precisely what makes it a good idea”

    That I’m unclear why they should be relied upon? Doesn’t seem like a good idea in itself.

    “They couldn’t be relied on to confirm federal officers of the sort we get today.”

    Oh, okay. I didn’t actually say that (that is, that they would be relied on to appoint a certain type), but that is more understandable. They would generally appoint the same general sort of people given they will have political pressures, will involve the same overall set of politicians with the same overall ideas etc.

    “It’s a way of undoing the damage the 17th amendment did to the balance of power between state and federal governments.”

    Again, w/o the 17A, the same system would have been in place overall — the people already in 1910 was starting to make the state legislatures akin to today’s electors. Over time, unless an amendment was in place to stop them, the people of the states would only more as a whole have pushed to be the real voters of the senators. Also, the Senate still provides each state as states two senators picked by people from each state, the state as a whole. The same people who elect legislators who picked them before. See, e.g., the Lincoln-Douglas debates which appealed to the electorate who picked people who supported one or the other candidate. Anyway, Brett’s anti-democratic approach is not supported by the people, so it is not going to be passed.

    “But a time limit, with abolition of recess appointments altogether, would address the immediate problem of a President who thinks Senators taking a potty break allows him to skip getting his nominees confirmed.”

    That isn’t the argument.

  12. dht says:

    My proposal on the governors is part of a larger scheme I have been thinking of recently to completely remake the structure of the Federal government. As Brett notes, it is a way to strengthen federalism. The rest of my proposal, which is merely me thinking off the top of my head, is to have a unicameral legislature which is elected for 4 years, and which chooses the President, but NOT a sitting member of Congress.

    I also think we should try to find a way to severely reduce/eliminate the role of political parties. IMO, too many elected officials are voting the way the party wants them to, not the way they would as individuals. This helps explain why some nominees come out of committee with bi-partisan majorities, only to be blocked on the floor of the Senate.

    All of this is simply my random thinking about government structure, and of course, as with any such proposal, there are bound to be unforeseen and/or unintended consequences.

  13. Shag from Brookline says:

    Let me substitute “naive” for “dumb” with respect to the governors proposal, as well as other things suggested off the top of the head.

  14. dht says:

    Shag, you may be right. As I noted, this is just me thinking off the top of my head. My primary goal is to eliminate at least some of the veto points which are built into our current system, such as two houses of Congress, and the all too possible partisan split between Congress and the President. In general, I find that people tend to support reforms when it helps their cause, and oppose them when it hurts their cause. My goal is to try to find a way to reform the system so that all sides can buy into it. This is likely very naïve, or very dumb, or both, but one should not dismiss the underlying goal out of hand merely because of the naïvete or dumbness of the proposal.

    And of course this entire conversation has gotten a long way from the original thread concerning Noel Canning. The more important point is did the Obama administration go too far in its recess appointments, and if so, what is the solution for a problem which has plagued the country since at least the Bush the Younger administration, and possibly longer.

  15. Shag from Brookline says:

    The Court in deciding Canning may carefully consider history on the history of recess appointments over a couple of centuries. The Constitution does not specify originalism as the means for the interpretation/construction of the Constitution, just as the Constitution does not specify judicial review or horizontal judicial supremacy. I just finished reading Jack Balkin’s “The New Originalism and the Uses of History.” It is a worthwhile read. Balkin references at least 11 modalities of history used by lawyers and judges, whether originalists, non-originalists or living constitutionalists. The simple method of text does not work best especially with over a couple of centuries of the uses of the recess clause in action.

    Ike gave Earl Warren a recess appointment on Oct. 1, 1953. The Senate confirmed by unanimous voice vote on March 1, 1954. Brown v. Bd. of Educ. came down on May 17, 1954 unanimous (9-0). I don’t recall any serious discussions at the time that if the recess appointment was unconstitutional and Warren had discussions with the other Justices before the Senate confirmation that the decision was tainted. Before Warren’s recess appointment it had been reported that several Justices had serious reservations on ruling for the plaintiffs.

    There were many more recess appointments, perhaps each with a story to tell about what might have happened but for a recess appointment. In Canning, it should be kept in mind that the NLRB could not act because of a lack of a quorum of members before the recess appointments. Senate Republicans wanted it to stay that way.

  16. Brett Bellmore says:

    The Constitution doesn’t specify English as the language it’s to be read in, either, but that doesn’t mean it is legitimate to invent a new language, and read the Constitution as though it were written in that language rather than English.

  17. Shag from Brookline says:

    I guess it’s over Brett’s head that the Constitution is written in English in an America that was immersed in the English language. And Brett should keep in mind that while technically this Constitution may not have been the first constitution in the world, the concept of the judiciary set forth in Article III is quite sparse, particularly in comparison with the details in Article I and Article II concerning the other branches. Point to the text, Brett, that specifies the method of interpretation/construction, judicial review and horizontal judicial supremacy.

  18. Brett Bellmore says:

    I guess it’s over your head that originalism is just a given, unless you’ve already decided you don’t want to honestly interpret a document; Because that’s all originalism IS: How you read documents, if you actually want to know what they mean, instead of being determined to arrive at the meaning you want regardless of the document. Nobody does anything BUT originalism unless they’ve already decided to do something other than find out what the thing they’re reading means.

    The other modes of ‘interpretation’ are nothing but different flavors of sophistry, all with the same end in mind: Not being forced to accept that the Constitution means something you don’t like.

    And, how fatuous would it be to include in a constitution a clause stating that it was to be honestly interpreted? Is each clause to start with, “Simon says”, or end with, “and we really mean it!”? Perhaps preface it with a statement that, “All words herein are to be understood to mean what they say.”?

  19. Shag from Brookline says:

    Brett demonstrates once again his historical failures, this time on originalism, which emerged in the second part of the 20th century and has gone through, and is still going through, modifications, most currently with the “new originalism” that addresses interpretation and construction. Perhaps Brett can search through history in the almost 200 years of applying the Constitution prior to 1980 to identify originalism as a given..

    Perhaps if at the Constitutional Convention there had been specifically proposed a provision in the nature of some version of originalism there might have been a serious debate about the “dead hand” governing well into the future – like with chattel slavery.

  20. Shag from Brookline says:

    Perhaps it would be a bit much to expect Brett to actually read – and understand – the Jack Balkin Fordham L.R. article earlier referenced by me, which includes a history of originalism.

    Brett may not be aware that agreements often include a provision on construction as well as provide definitions of terms in the document as guidance for interpretation/construction. Such may not be appropriate for a Constitution that provides a framework without excruciating details. But imagine if the Constitution of 1787-9 had included a specific provision such as: “This Constitution shall be interpreted and/or construed only as its text is understood as of its ratification by reasonable white men of property, including chattel slaves.” Maybe Brett is of the view that this was subsumed in the Constitution.

  21. Shag from Brookline says:

    Eric Posner has some interesting posts at his new blog on originalism, including historical and statistical information.