Friday round-up
on Jan 10, 2014 at 9:08 am
With the Court scheduled to hear oral arguments in National Labor Relations Board v. Noel Canning, the challenge to the constitutionality of the president’s recess appointments to the NLRB, on Monday, commentary on the case abounds. The Washington Legal Foundation posts analyses from Michael McConnell, who outlines “three independent reasons” why the appointments are unconstitutional, and Sidney Rosdeitcher, who argues that the D.C. Circuit’s decision invalidating the appointments was wrong. In a report on the case for the Brennan Center, Alicia Bannon and David Earley contend that “[t]he recess appointment power has played an important role in our nation’s history by helping keep the government running smoothly when the Senate was unable to provide its advice and consent on nominations”; if that decision were upheld, they continue, “the loss of this important tool would profoundly alter the balance of power between the president and the Senate.” At the Constitutional Accountability Center’s Text and History Blog, Elizabeth Wydra lists four reasons why, in her view, the case “still matters even in a post-nuclear world.”
Other analysis of Noel Canning focuses specifically on the grammar of the Recess Appointments Clause, and in particular on whether the vacancies to be filled through a recess appointment must be created during the recess (as the D.C. Circuit held, and Noel Canning contends) or must merely exist during the recess (as the government argues). At Balkinization, Michael Herz offers an interpretation of the clause that “prescribes when vacancies may be filled and is simply silent about when they must arise.” Will Baude (to whom Herz was originally responding) refutes that interpretation at The Volokh Conspiracy, countering that “[a] vacancy that arises during the session of Congress is generally one that could have been filled, if Congress or the Senate wanted to . . . . It makes eminent sense for the Constitution not to grant recess appointment authority in such circumstances. Which is what it seems to say.”
