Thoughts on Noel Canning
I was pleased with the Court’s decision last week, though that just means that it came out the way that I would have decided it. Here are a couple of observations going forward:
1. All Noel Canning does is clarify the bargaining terms between the parties. The Senate can now block all recess appointments by holding pro forma sessions. A motion to hold that sort of session, though, can be filibustered. Moreover, any Senator can turn a pro forma session into a real one by just showing up and insisting on being recognized by the chair. Thus, a normal majority in the Senate cannot block recess appointments without cutting deals with the other party and with the President.
2. The House can prevent the Senate from taking a recess by objecting. This will only happen, though, if Congress is divided in its party loyalties. While this is true now, that alignment is pretty rare. It did not happen at all between 1933-1980, for example, though it did happen from 1981-1986 & 2001-2002 before recurring in 2011. Still, that’s 12 years out of the last eighty or so.
3. Somebody should write that Article about the President’s adjournment power in cases where the two Houses cannot agree on a recess. Since the President has never exercised this authority, originalism reigns supreme!
We’ll see what Hobby Lobby has to offer in the morning.