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Canning and Scalia’s Law Office History

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For reasons I’ve discussed at length, I don’t agree with the majority’s judgment in NLRB v. Canning. However, I am happy that thanks to Kennedy the Court didn’t quite go full metal wingnut.

On the latter point, I have a piece up at the Guardian about Scalia’s concurrence. For the reasons cited, the idea that the text of the Constitution “unambiguously” forbids intrasession appointments is unserious. It’s not true on its face, and carries with it the additional problem of requiring the belief than many presidents, attorneys general, and — perhaps most importantly — Senate leaders have advanced a reading of the Constitution that is not merely mistaken but irrational.

So what this comes down to is the question of historical practice, and on this point Breyer simply demolishes Scalia. It’s not just that intrasession appointments have been common since the Andrew Johnson administration. Worse for Scalia’s argument, as Breyer demonstrates, is that prior to the Civil War Senate sessions were comparatively short on the one hand and intrasession recesses for all intents and purposes didn’t exist on the other. What we can infer about what Madison, Monroe, Jackson et al. thought about intrasession recess appointments from the fact that they didn’t make any, in other words, is nothing. That they didn’t make intrasession recess appointments is about as relevant as the fact that they didn’t make statutes available in PDF form. The increasing ubiquity of intrasession recess appointments is based on factors, such as modern party politics and air travel, that the founding generation didn’t anticipate. To try to to figure out how they would have evaluated intrasession recess appointments in a contemporary context is a pointless exercise.

And so I come back to this point — even if Scalia’s originalist arguments were as persuasive as he thinks they are, you can’t apply “originalist” arguments in isolation to one facet of the 21st century political system. The framers may not have anticipated intrasession appointments, but they presumably didn’t foresee modern partisan obstruction or the serial rejection of presidential nominees either. Originalism-for-me-but-not-for-thee can’t work even if we could discern a meaningful “original meaning,” which we generally can’t.

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  • Murc

    As the internet loudmouth here in the comments who was probably the most vociferous proponent of the viewpoint that it is the Senate, not the President, that decides when it is in session or not, please allow me to say that four Supreme Court justices finding that intrasession recesses do not count is horseshit of the highest order.

    I mean, my god. I actually kind of suspect that Roberts, who is a giant tool but is not dumb, only signed onto it because he wanted to burnish his wingnut cred and knew that there was no chance it would actually be written into law. There’s probably a reason he passed it to Scalia; he wants his name on it, but doesn’t want his name ON it, y’know?

    The weird three-day rule seems… odd… to me; if the Senate is in recess, it’s in recess. As a practical matter, it does seem likely to have a salutary effect, tho; the Senate can now go into short recesses rather than having to be in session all the time and still preserve its power to block Presidential appointees. Things being clearer will probably cut down on the weird-ass parliamentary maneuvering at least a little.

    • Joe

      The word ‘recess’ in context suggests a certain amount of time. It isn’t like ‘recess’ for school or anything. And, apparently, history has judged that a certain minimum amount of time == bound to be a bit arbitrary along the edges = is necessary there.

      • rea

        “At high noon on Dec. 7 1903,” Senate associate historian Betty K. Koed has written, the Senate president pro tem brought down the gavel to end one session of the Senate and then said “the Senate will now come to order.”

        “In that moment between sessions,” Koed wrote, “during that split-second of time it took . . . to wield the gavel, President Theodore Roosevelt made 193 recess appointments.”

        http://www.washingtonpost.com/blogs/in-the-loop/post/recess-appointments-nobody-did-them-like-teddy/2011/12/08/gIQAJK1IgO_blog.html

        But the three-day rule comes from Art. I Sec. 5:

        Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

    • postmodulator

      Doesn’t it mean they can be obstructionist without the slight amount of personal inconvenience they had to deal with before?

  • tsam

    It’s bad jurisprudence to apply “originalism” to anything. Law should be more objective than subjective, and trying to crawl inside the mind of people (white, propertied males only) who lived 200 years ago, when slavery was legal, women couldn’t vote and there were only a few states is pretty dumb. There are certainly timeless values and mandates in the Constitution, but this strict adherence to the text of the document is more an excuse to be a prick about issues of equality and equal justice than about any reverence for what it says.

    • efgoldman

      It’s bad jurisprudence to apply “originalism” to anything.

      If gawd had wanted gummint to regulate, e.g. airplanes, teevee, or clean air, s/he’d have told Jefferson, Adams and Franklin t include it. [/Scalia]

    • gocart mozart

      Be that as it may, I’m glad that Scalia was able to divine that the Founders believed that a smartphone is akin to ones personal papers and therefore requires a warrant.

      • Snarki, child of Loki

        It’s part of the “emanations and penumbras” of the Bill of Rights.

        Yes, they can be difficult to discern, but there’s an app for that.

      • tsam

        I was surprised at that. I thought they would wiggle out of that by saying that cell phone users broadcast their voices over public airwaves.

        • Snarki, child of Loki

          “public” airwaves? How quaint.

  • joe from Lowell

    For Scalia – as usual – the question presented in the case was allegedly an easy one because the text of the recess appointments clause is “unambiguous”. The recess appointment power, he argues, applies only to recesses between Senate sessions and not within them. By holding otherwise, Scalia charges, “the majority casts aside the plain, original meaning of the constitutional text”.

    Virtually nothing that reaches the Supreme Court has an obvious, unambiguous answer. People who claim something does – derp, what part of “shall not be infringed don’t you understand, derp?” – are either ignorant or dishonest.

    Antonin Scalia is not ignorant.

    • Crunchy Frog

      No, but he is intensely biased while pretending to be objective.

      Are you willing to make the argument that if the exact same case had come before the SCOTUS in 2005 Scalia would have taken the exact same position?

    • rea

      And how the fuck he can say that, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session,” unambiguously settles the question is beyond human comprehension.

  • Ralph Stimper

    you can’t apply “originalist” arguments in isolation to one facet of the 21st century political system.

    Ideas are timeless. That statement is meaningless.

    The framers may not have anticipated intrasession appointments, but they presumably didn’t foresee modern partisan obstruction or the serial rejection of presidential nominees either.

    Framers also didn’t foresee powerful autonomous bureaucracies that can rule without congressional approval with the power of law, either.

    All Obama has to do is nominate someone that everyone can get behind and his nominations would go through easily. Instead, he wants to nominate those who will “fundamentally change America”. Well, guess what? He gets some pushback now that he doesn’t have the ‘cakewalk’ legislature.

    • Davis X. Machina

      In the hot summer of 1787, in Philadelphia, who could have possibly imagined butter-flavored syrup?

      • joe from Lowell

        What kind of pancakes have you given us?

        Buttermilk, if you can keep them.

        • Frozen ones, with sausage inside!

          Give me YUCK!, and an early diabetic and heart disease diagnosis Liberty, or give me…
          uhm…
          death…

      • Autonomous Coward

        Give me blueberry compote or give me death!

        • Warren Terra

          The meter works if you lost the compote:

          Give me blueberries or give me death!

          • Autonomous Coward

            Fuck your foot.

    • joe from Lowell

      All Obama has to do is nominate someone that everyone can get behind

      Lol! That’s awesome!

      You did write this comment as parody, right?

      • Ralph Stimper

        I think the SCOTUS has rightfully saved us from dirty tricks of the president doing an end-run around the constitution.

        Thank you SCOTUS

        • joe from Lowell

          Your principled commitment to proceduralism is noted.

          Fortunately, the Republican minority has already ceded its power to block executive branch nominees.

          So, win-win.

        • gocart mozart

          Obama invented recess appointments just like he invented golf, vacations and teleprompters.

        • DrDick

          Do you really want to go there? Obama has made fewer recess appointments than any president in the past 35 years. The king of dirty tricks was Reagan.

        • advocatethis

          Awww, you’re a cute little troll. Stick around.

    • Murc

      Framers also didn’t foresee powerful autonomous bureaucracies that can rule without congressional approval with the power of law, either.

      Please name a single part of the federal government that “rules” without congressional approval.

      Congress controls damn near everything. Their power is robust and far-reaching. They could, if they so chose, completely defund the Executive Branch if they wanted. They could order the White House razed to the ground and the earth salted, and force the President to conduct business from a Motel 6.

      They often choose to delegate that power, because Congress has better things to do than, say, personally collect taxes, or oversee our national transportation infrastructure, or run the Federal Reserve, or protect the environment. But all of those bureaucracies operate with explicit Congressional imprimatur, and they serve at the pleasure of the Congress, which can dismember them at any time.

      In short: you are wrong.

      • Autonomous Coward

        I don’t even think he’s “wrong”, he’s transcended that puny dichotomy and gone straight to Next Level Bonkers.

    • Hogan

      Ideas are timeless. That statement is meaningless.

      I agree, and I can’t help wondering why you made the statement in the first place.

      • Davis X. Machina

        In addition to being timeless, colorless green ideas sleep furiously, or so I am told.

    • efgoldman

      To be fair, Ralph was fine until the last paragraph.

      • efgoldman

        But he shows his true trollness below.

        • You should never flip a troll over without rubber gloves and a particulate mask.

    • postmodulator

      All Obama has to do is nominate someone that everyone can get behind and his nominations would go through easily.

      Fuck yo’ mama.

      • Brad Nailer

        Now you’re just going to make him mad.

  • Joe

    I’m not sure your previous article words as much with Breyer’s narrow opinion which in effect keeps the courts out of the business of determining what sort of “pro forma” session isn’t “pro forma” enough by drawing a clearer line.

    I think the NLRB need of a quorum is a special case even there myself, but anyway, I can live with his opinion. It also is nice, unlike if Kennedy (the lead justice in the controlling majority opinion) wrote things, he repeatedly answered Scalia (seen by doing a “find” search for “Scalia” and his name pops up over five times in the majority opinion).

    I also can live with the abortion protest buffer zone opinion, especially if Ginsburg felt it okay enough not to write separately.

    • Ed

      And Ginsburg thinks Roe v. Wade was a big boo-boo. “Ginsburg’s okay with it,” is not terribly reassuring.

      • Joe

        She thought how they went about Roe was bad strategy. She supports the result but rather it be based on equal protection. Not sure what your comment gets you. The overall idea seems to be that Ginsburg saw how the winds blew here & thought Roberts’ opinion was the least bad possible as Scott suggests.

  • Ralph Stimper

    This is the twelfth time the SCOTUS has defeated this administration in unanimous rulings.

    “When President Obama’s own Supreme Court nominees join their colleagues in unanimously rejecting the administration’s call for broader federal power nine times in 18 months, the inescapable conclusion is that the Obama administration’s view of federal power knows virtually no bounds…” –Sen Ted Cruz

    • Autonomous Coward

      “Broader federal power” is an astonishingly meaningless phrase when discussing an SoP issue. Even Ted Cruz should know better.

      (Actually, I’m sure Ted Cruz *does* know better but he also knows that his rubes don’t.)

    • efgoldman

      Ah, NOW the troll flag flies. Recess appointments are not “broader federal power.” They’re enumerated in the Constitution, Which “federal?” Last I heard Congress was part of the government, despite what the GOBP TeaHadis think.

    • joe from Lowell

      Ha ha, Ted Cruz doesn’t know the difference between “federal” and “executive.”

      What a dope.

      • Davis X. Machina

        He’s been swatting up his Addington & Yoo.

      • Anon21

        He may just be unintentionally revealing the real GOP agenda here: under a regime in which a Senate minority can blockade executive offices and the President can’t make recess appointments, the Senate minority can disable federal agencies like NLRB and CFPB. There’s really no inverse power for a party that favors greater federal control, so he’s correct that Obama’s position opens up greater scope for federal power. Of course, that’s only because Obama is interested in enforcing statutes enacted by Congress while the GOP isn’t.

    • gocart mozart

      “Evolution, climate science and gay rights are communist plots.” – Rafael Cruz

    • rea

      the twelfth time the SCOTUS has defeated this administration in unanimous rulings

      And, funny thing, I can’t find 12 unanimous decisions against administration positions . . .

      • advocatethis

        You have to use your McCarthy Communist converter ring.

      • timb

        Hell, John Fund wrote that piece of derp, so you know what level of honesty is used. Case in point, he declared the Massachusetts case a “defeat” for the Obama administration, because they filed an amicus brief.

        Derp moves at the speed of light

  • Manny Kant

    So what effect does this have on the various pro-labor NLRB rulings of the last couple years? Are they all invalid now? I assume our elite universities will be back to breaking grad student unions, for instance.

    • Joe

      There has to be a quorum (three) to decide.

      So, I gather, any decisions where a necessary quorum of legitimately appointed members were not present would be invalidated. This would be between January 4, 2012 (the illegitimate “recess” appointments) and July 30, 2013 (confirmation of members) or thereabouts.

      It appears to me the rest of the time is okay.

      • Snarki, child of Loki

        So, now we get to go back and invalidate ALL the decisions/actions by all of the OTHER recess appointees where there wasn’t a magic quantity of recess?

        ‘Cause I think that Teddy Roosevelt did a bunch of them, and probably all the presidents before Obama, too

        Sure, mostly there’d be no effect, but if they issued any contracts, then the Feds can demand the money back, and private parties can get involved to go after the cash. With interest? Fun times!

        • Joe

          The opinion notes that there really aren’t many and anyway — if we want to actually get serious — the ones from TR days and much later too — would meet some sort of statute of limitations. Anyway, the line-drawing has been recognized for some time. The Administration at the very least set three (with reasons). It is not just “magic.” That’s Jesus.

    • Anon21

      Supposedly, NLRB (which now has a confirmed quorum) can retroactively approve them.

  • efgoldman

    I assume our elite universities will be back to breaking grad student unions, for instance.

    I hadn’t noticed that they stopped.

    • Manny Kant

      Well, right, but having more tools at their disposal to do so. But apparently it’s okay because the current NLRB can just reconfirm all those decisions.

  • sleepyirv

    Scalia’s “faint-hearted originalism” comes to play here. Scalia says he always want to go with the original meaning of the Constitution. However, if there’s a lot precedent going the other way, he’s willing to follow precedent.

    What this really means is Scalia picks and chooses. Original Meaning is the conservative result? THE FOUNDING FATHERS, blah, blah, blah. Precedent gives the preferred answer? 150 YEARS OF PRECEDENT CANNOT BE IGNORED, BLACKSTONE, blah, blah blah. Of course, 200 years of practice by Congress and the President isn’t technically precedent, but I’m sure Scalia could have framed it that way if he chose.

    • Davis X. Machina

      What this really means is Scalia picks and chooses

      Damn cafeteria Catholics…

      • sleepyirv

        Scalia is Thomas Cromwell if Cromwell thought he was Thomas Moore.

        • Hogan

          We had to dissolve the monasteries in order to save them.

        • timb

          +2

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  • Jane

    “I am happy that thanks to Kennedy the Court didn’t quite go full metal wingnut.”

    Wow, your rhetorical skills are amazing. Are you this insufferable in person?

    • DrDick

      You obviously are even more insufferable.

    • sharculese

      Kid, if you think a bit of mild sarcasm is something to get in this much of a snit over you need a solid lesson in calming the fuck down.

      • Stranger Danger

        Classy…

        • sharculese

          Jenny I never claimed to be classy. Just smarter than you.

          • timb

            like that’s saying something

  • cpinva

    at some point, the GOP will regain the white house. hopefully, they will also have regained their senses, but there’s no guarantee of that. all of these actions they’ve taken, as the current minority party, to thwart Obama and the senate, will come back to bite them in the ass. is that what they really want to set a precedent for?

    • Brad Nailer

      I hear you, but unfortunately, adhering to precedent doesn’t seem to mean anything to them. For Republicans, “whatever works” is the guiding light, and to hell with rational public opinion, common sense and whatever lessons history might have to teach us.

    • Joe

      Whatever works at the time is there motto. “Precedent” has a way of not seeming on point when it doesn’t benefit you.

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