LaCroix Approaches NLRB v. Noel Canning Linguistically
As the current Supreme Court Term draws to a close, the decision in one of the most closely watched cases of the year, NLRB v. Noel Canning, remains to be announced.
The case concerns the president’s recess appointment power under Article II, sec. 2, cl. 3 of the Constitution. The Recess Appointments Clause states:
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.
The specific issue in the case is the validity of an NLRB decision against Noel Canning. The company argued that the NLRB lacked constitutional authority to issue the order because three members of the NLRB were not properly appointed under one of a variety of theories: (1) the Senate was not in recess when they were appointed, so the Recess Appointments Clause did not apply; (2) the vacancies they filled did not originate during a recess, so the Recess Appointments Clause does not apply; or (3) when the appointments were made, the Senate was meeting in pro form session, so the Recess Appointments Clause did not apply. The case thus raises classic president-versus-Congress separation of powers questions, with a customary soupçon of politics thrown in, insofar as the recess appointments power is widely understood as a limited basis for presidents to install their own appointees in the face of Senate opposition.
But NLRB v. Noel Canning also presents a useful test case for a new approach to legal interpretation based on linguistic analysis. In an ongoing project, we are developing a theory and a methodology of historical semantics and legal interpretation. The methodology brings together research in historical jurisprudence and in theoretical and computational linguistics in order to understand the meanings of words and phrases in context. Across the spectrum of constitutional interpretation, theories from originalism to textualism to common law constitutionalism, require the interpreter to articulate which written sources, and which words, count for purposes of determining constitutional meaning. At the same time, the Supreme Court justices seem more interested than ever in using dictionaries to elucidate the meanings of constitutional and statutory texts.