The Scotus Blog is having a symposium on the Recess Appointments Clause and the Noel Canning case. The symposium will last until Wednesday of this week.
My own entry – “The originalist and non-originalist cases for following the original meaning of the Recess Appointments Clause” — is up.
Here are a couple of excerpts:
The issues raised by National Labor Relations Board v. Noel Canning, which provides the Supreme Court with its first opportunity to interpret the Recess Appointments Clause, are easy to misinterpret. Many people view the case as political or partisan. After all, the recess appointments involved NLRB officials who decide issues that generate much political controversy. The D.C. Circuit decision was written from an originalist perspective by a conservative judge and joined by two Republican appointees. A Third Circuit decision, which also found the NLRB recess appointments unconstitutional on originalist grounds, was again supported by Republican appointees, with a dissent by a Democratic appointee.
But it is a serious and shortsighted mistake to view the issues at stake in partisan terms. The easiest way to see this is to go back eight years, when President George Bush was recess-appointing judges who were being filibustered by the Democratic Senate minority. At that time, a broad recess appointment power was attacked by liberals, including a court challenge joined by liberal icon Senator Ted Kennedy. The resulting Eleventh Circuit decision allowing a broad recess appointment in Evans v. Stephens was written by a Republican appointee, with a strong dissent advocating a narrow interpretation of the Clause on originalist grounds written by liberal judge Rosemary Barkett.
While the recess appointments power can obviously be partisan in the short run, in the long run it concerns nonpartisan matters about the allocation of constitutional authority and checks and balances. I have always viewed the Clause in these terms. When I wrote my 2005 article on the Original Meaning of the Recess Appointments Clause, my position led me to contest the Bush recess appointments and to agree with Ted Kennedy – not a familiar position for me. If we step back from today’s short-run politics, there are strong arguments based on the original meaning, on modern circumstances, and on maintaining limits on presidential power for following a narrow interpretation of the Recess Appointments Clause.