Noel Canning Orals Preview

There is no surprise that these questions — with major political as well as constitutional impact — were stirred up by disputes over presidential nominations to the National Labor Relations Board. That seventy-eight-year-old agency, which oversees labor-management dealings, has become an increasing target of business hostility and, as a result, Republican opposition to its decisions and its membership.

I talked about the Recess Clause a few times, as noted here when talking about this particular application of the controversy. There is "no surprise" either that the stances of each side were somewhat different when determining what "happen" etc. means when a Bush judicial appointee (not required to provide a quorum as compared to NLRB members in this dispute, putting side any difference of such a life time appointment) was at stake.

The hair splitting game continues. To continue to quote the SCOTUSBlog preview: 

Predictably, perhaps, the jousting over recess appointments has now become a constitutional controversy for the Supreme Court to sort out, since no one else in government can declare just what the Recess Appointments Clause actually means.  Indeed, the case now before the Court involves questions about the meaning of these key words in the clause: “vacancies,” “may happen,” “during,” and “the recess.”

I think this is largely a political question, but then, even determining what is a "political question" and the scope discretion given to the political branches (to the degree one thinks the courts are not political, which I realize might sound a bit naive, if not wrong on other grounds)  is ultimately up to the courts. Cf. the definition of "try" in the case of impeachment. A game of word parsing here is at some point tiresome. There are various possible reasonable grounds to define these terms and the path taken by the executive (and not rejected by the current majority of the Senate, so the two sides are not in dispute, even if the minority of the Senate has a voice in the litigation -- which I continue to see dubious) is not an unreasonable application of the text. This should do it.

Judicial review is important in our system, but there still remains a presumption of constitutionality of political action, including the actions of the President and the majority of the Senate. The well respected Carolene Products rule is concerned with clear textual commands and threats to minorities that might need additional judicial concern. Big business interests that have the whole Republican Senate caucus on their side does not seem to be to apply very well here. National rules that might be threatened by individual states or even federal agencies might be an issue too. But, the ebb and flows of inter-branch disputes seems to be a prime area that political question rules should apply.

The Founders adopted the exception because, in a day when travel was extremely difficult, there would be times when the Senate would not be able to assemble to consider an appointment to a position that had become vacant.  It was written to assure that government agencies could continue to operate in the interim.

The first part might be the immediate concern but as usual the charm of the text (if also its vice) is that it goes further than that.  There is text and new concerns might arise that can be addressed by its usage. Also, the new concerns often -- as here -- still arise from the same overall purposes. The Senate could back then by inaction not fill vacancies and in the process inhibit the execution of the laws.  Travel problems is not the only reason to use the recess power. If modern political tactics or inertia results in vacancies, the clause can still be quite useful. And, phony "sessions" where advise/consent is not realistically available provides a functional recess that also provides an appropriate usage.

Finally, other than clear textual commands, a primary purpose to distrust the political practices is that some person or group lacks adequate security in the political processes.  Here -- though again the majority of the Senate is not complaining -- the threat is the executive misusing recess appointment power and infringing on the advice/consent power of the Senate. The Senate (and even a minority of it) has various ways to check any "abuses" here as to appropriate custom. The courts, especially by usage of at best debatable fine tuning of the text, need not step in.

If they do, the President should win on the merits. Will he? Eh.