« More on the New Filibuster Rule
Mike Rappaport
| Main | Zachary Price: Enforcement Discretion and Executive Duty
Michael Ramsey
»

11/27/2013

Additional Amicus Brief in Noel Canning
Michael Ramsey

In addition to the Originalist Scholars' brief in NRLB v. Noel Canning, Will Baude notes that he and Michael McConnell filed this amicus brief on behalf of Constitutional Law Scholars in support of Respondents (that is, against the executive branch).  Their brief makes the further important point that nothing in subsequent practice gives any ground to depart from the original meaning of the recess appointments clause.

The Baude/McConnell brief is an important complement to the Originalist Scholars brief.  Our brief makes the originalist case against the executive's recess appointments in the case, and then concludes (rather abruptly, I might say) that the decision of the court of appeals should be affirmed.  Yet even among originalists, there is considerable difference of opinion as to the circumstances under which the original meaning is or is not conclusive of modern outcomes.  Our brief does not argue (and should not be read to imply) that original meaning is always conclusive; at minimum, at least some of its signatories think that precedent (even non-originalist precedent) plays an important role, and some of us (e.g., me) have kept carefully agnostic on the matter.

But the Baude/McConnell brief shows that, even if one is willing to allow other considerations to trump originalism in some cases, there is no plausible argument that this is one of those cases.