Eric Posner on Noel Canning

Forget the Framers

Next week, the Supreme Court will hear arguments in a case that pits President Obama against Congress in the struggle over control of the federal bureaucracy. National Labor Relations Board v. Noel Canning is about the president’s power to make appointments when the Senate is in recess. It involves an obscure provision of the Constitution, a clumsy appeals court opinionthat upset the delicate balance of power between the other two branches, and the question of whether James Madison attempted to appoint a certain Theodore Gaillard to a vacant judgeship on April 13, 1813. This last question matters to scholars who believe that the original meaning of the Constitution—rather than tradition and common sense—should determine the outcome. But the case illustrates once again the folly of this view.

On Jan. 4, 2012, while the Senate was on a 20-day break, President Obama appointed three people to vacant positions on the National Labor Relations Board. Normally, these appointments would require the consent of the Senate. But the president argued that they were valid under a clause of the Constitution that authorizes him to “fill up all Vacancies that may happen during the Recess of the Senate.”

Noel Canning, a company trying to escape an adverse decision by the NLRB, argues that the appointments did not take place during a “Recess,” because a recess occurs only between sessions of the Senate, while the 20-day break took place after the 2012 session officially started on Jan. 3. Moreover, the appointments filled vacancies that “happened” (in the sense of “arose”) before the recess, while the clause authorizes the president to fill only vacancies that “happened” (arose) during the recess. The point of the clause was to allow the president to make appointments needed to keep the government operating while Congress was away. If a vacancy opens up while the Senate was in session, the president should make the appointment then rather than wait for the recess.