Noel Canning, Executive Power and Originalism

November 5, 2013
Guest Post
by Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
Editor’s Note: This Thursday, November 7, the ACS Pittsburgh Lawyer Chapter and the University of Pittsburgh School of Law Student Chapter will host a Supreme Court Preview featuring Professor Tushnet and Professor Jules Lobel of the University of Pittsburgh School of Law.  To hear more from Professors Tushnet and Lobel about Noel Canning and the rest of the Court’s October Term 2013, please RSVP here.
Courts of appeals panels with majorities appointed by Republican presidents have teed up a problem for the Supreme Court: Are the Court’s Republican appointees devotees of originalism or executive power – or, will they use originalism as an excuse for supporting executive power when the executive is a Republican but for opposing it when the executive is a Democrat?
National Labor Relations Board v. Noel Canning involves the president’s power to make recess appointments. Filibusters over nominations to the National Labor Relations Board had paralyzed the NLRB (aided and abetted by a Supreme Court decision holding that the NLRB couldn’t act through panels of fewer than three members), when Republicans in the Senate refused to go forward with nominations to fill three vacancies on the five-member board. Republican Senators also refused to allow a vote on the nomination of Richard Cordray to head the Consumer Financial Protection Bureau because they opposed the Bureau’s existence (and by law, the Bureau’s powers were quite limited in the absence of an agency head). President Obama responded by seizing on a technical “recess” in the Senate – a series of days out of session punctuated by minutes-long “pro forma” sessions – as the basis for making recess appointments to the NLRB and the CFPB.
With its new “members” on board, the NLRB entered an order against Noel Canning, which appealed. The U.S. Court of Appeals for the D.C. Circuit held that President Obama didn’t have the power to make the recess appointments because the recess appointment power allowed him to make appointments only when the Senate was between its major sessions – basically, between the adjournment of the House of Representatives pending an election and the new House’s convening. (A majority of the court of appeals also held that the recess appointment power extended only to vacancies that arose during that same period – not to vacancies that extended into a session of a sitting Congress.)
The decision in Noel Canning has been followed by two other court of appeals decisions to the same effect – and by panels with a majority appointed by Republican presidents and dissents by judges appointed by Democrats. All the courts of appeals have written strongly originalist/textualist opinions that are unresponsive to the developments in the political system that occasioned the growing use of recess appointments from the early twentieth century to the present.
This will present something of a dilemma for the Supreme Court’s conservatives, along several dimensions. They all gravitate – some more than others – towards originalist analysis, and the case for upholding the NLRB recess appointments is more firmly based on practice than on original understanding (though aspects of the latter, as always, can be deployed in support of upholding the appointments). So, they might incline toward invalidating the appointments.
On the other hand, they have been strong advocates for a robust understanding of the scope of the president’s powers under the “take care” clause of Article II. The recess appointment power is located in Article II, though. And, statistical studies show that prior service in the Executive Branch is correlated with support for presidential claims of power. All this might incline them toward upholding the recess appointments.
Yet, on the third hand, the presidents whose power they were enthusiastic about were Ronald Reagan and George W. Bush – which is to say, Republican presidents. So, we don’t really know whether they were enthusiastic about robust presidential power as such, or only robust power when exercised by Republican presidents. Noel Canning will help us understand whether the Roberts Court just calls balls and strikes like a neutral umpire, or whether it calls them for the home (that is, Republican) team.