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03/21/2013

More on Eric Posner on Recess Appointments
Chris Green

Thought I'd chime in on Eric Posner's criticism of Noel Canning, which Mike Rappaport discusses below. A couple of thoughts related to my Originalism and Knowledge paper come to mind.

First, Posner thinks, along with lots of early courts (see my paper at pp. 30-36), that courts should only invalidate other branches' actions on constitutional grounds when those grounds are "clear"--Posner gives the example of the President's 4-year term. But, like Thayer, he ignores the contingency of clarity, particularly the fact that by reading the relevant scholarship (e.g., Mike's work), initially-cloudy constitutional issues can be clarified. See my paper at pp. 41-43 (and here). Just as courts have the obligation to carefully study all aspects of a case before contradicting the interpretations of elected branches, commentators have an obligation to carefully study relevant scholarship before condemning courts' work. If Posner wants to be a real agnostic on the meaning of the II/2/3 recess-appointment power, he should also be agnostic about whether other people have enough evidence to know the meaning of relevant terms. Dogmatism about whether anyone can know the meaning of II/2/3 (e.g., saying "we know next to nothing about what the founders intended" and tarring any additional scholary inquiry as "idle speculation") requires a lot more evidence than Posner exhibits.

Second, Posner ignores the president's own obligation to be sufficiently confident of his own reading of II/2/3 before acting. See my paper at pp. 49-51 (and here). If the meanings of "the recess of the Senate" and "that may happen during" are irremediably obscure, then even if knowledge-lacking courts might not be justified in acting to invalidate presidential actions, a knowledge-lacking president is himself unjustified in relying upon broad readings of the recess-appointment power to make appointments. Moreover, if a president with every incentive to substantiate the intra-session-recesses-too and previously-existing-vacancies-too readings of II/2/3 fails to produce significant historical evidence in support of those readings, there is good reason to think that such evidence does not exist. See my paper at pp. 39-41 (and here).