NLRB v. Noel Canning and Originalism (Updated)
First, congratulations to co-blogger Mike Rappaport for having two of his articles cited multiple times in yesterday's recess appointments decision, NLRB v. Noel Canning.
Second, my quick takeaway is that the case is a win for originalism. True, the majority opinion (Breyer, writing for Kennedy, Ginsburg, Sotomayor and Kagan) is an ugly bit of non-originalism. But for me, the attraction of this case has always been its potential to show that originalism is possible -- that is, that attention to the Constitution's text and original meaning can (sometimes, not always) supply reasonably determinate answers to current contested questions.
On this ground, I think victory can be declared. Justice Scalia's concurring opinion is a powerful originalist reading, concluding that (a) "the recess" of the Senate is the period between sessions, and (b) vacancies that "happen during the recess" are those that arise during the recess (not those that arise earlier and continue into the recess). The majority does not seriously dispute either point (instead relying on more recent practice and other practical considerations). More significantly, all of the other originalist and somewhat-originalist-oriented Justices (Thomas, Roberts, Alito) joined the concurrence, lining up with the three originalist-oriented judges in the D.C. Circuit. And further, their views coincide with the dominant position among originalist-oriented scholars, as reflected in the amicus brief my colleague Michael Devitt and I filed on behalf of a diverse group of law professors, and in the writings of other scholars on the issue.
Notably, Noel Canning did not have an overriding political valance. While it was nominally a challenge to President Obama, George W. Bush made similarly dubious "recess" appointments while in office, as no doubt will the next Republican President. Further, many of these Justices and scholars have been supportive of presidential power in other contexts; they are not driven by reflexive anti-executive sympathies. In sum, in this case there is no reason to think that originalist arguments were made as cover to achieve political or policy preferences; rather, originalist-oriented scholars, judges and Justices were all simply trying to figure out what the Constitution's text meant. And they were able to come to a strong consensus.
Of course that does not mean that originalists will come to a strong consensus in every case, or that originalism is the right approach for resolving constitutional questions. It does show, I think, that originalism can provide some answers (if we want to use them). To those who argue that originalism is inherently indeterminate or conceptually misconceived, the case is a strong rebuttal. That the Court's non-originalist majority chose a different path does not show otherwise.
Indeed, one of the most striking things about today’s opinions is the extent to which both Justice Breyer’s majority opinion and Justice Scalia’s dissent-like concurrence both tried to lay claim to the Constitution’s text and history. ... Although Justice Scalia attempted to suggest otherwise – he accused the majority of adopting an “adverse-possession theory of executive authority” and engaging in “judicial adventurism” – Justice Breyer’s opinion for the Court began and ended with the Framing.
More cautiously, Will Baude (What divides the Court, and what unites it) observes:
On the surface, the opinions appear to reflect an irreconcilable split in our current legal culture, and a victory for stability against constitutional textualism or originalism.
But I think, thankfully, that the appearance is illusory. For all that the opinions disagree strongly about how to read the Clause and what its purpose was, they actually do agree — at least in theory — about the role of the text and its original meaning. ...
[T]he majority *first* concludes that the text is “ambiguous,” looking to the text and structure of the Constitution and evidence of its original meaning. It claims that its construction is permissible because “the Framers likely did intend the Clause to apply to a new circumstance that so clearly falls within its essential purposes, where doing so is consistent with the Clause’s language.” ...
Similarly, Justice Scalia agrees that when there is “an unclear text and clear practice,” the practice controls. That is an agreement in principle with the majority. To be sure, for those of us who have immersed ourselves in the text, history, and purpose of the clause, it may feel like the lower-order disagreement is far more important than the higher-order agreement. But in the long run, from an interpretive point of view, the higher-order agreement is the one more likely to be remembered.
In a way, I'd like for these points to be true. But I'm not persuaded. In my view, the Justices in the majority ruled as they did because (a) they saw a long-standing and uncontested executive branch practice, and (b) they thought the President needs the ability to fill vacancies when the Senate is not available, regardless of whether the circumstances match those described in the Constitution's text. True, the majority makes a gesture to the text and original meaning by "first" finding them ambiguous. And the perceived need for that gesture in itself is a victory for text and original meaning. But the majority opinion's argument for ambiguity is so thin (and candidly so) that I can't believe the Justices in the majority would have found ambiguity had they not been motivated by the considerations noted above.