Recess Appointments and Precautionary Constitutionalism

126 Harvard Law Review Forum 122 (2013)

Harvard Public Law Working Paper No. 13-19

5 Pages Posted: 29 Mar 2013 Last revised: 6 Jun 2013

Adrian Vermeule

Harvard Law School

Date Written: March 28, 2013

Abstract

In Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), the D.C. Circuit held (inter alia) that the President’s constitutional power to make recess appointments does not include recesses during a session of the Senate (“intrasession recesses”), as opposed to recesses between sessions (“intersession recesses”). Many commentators have taken Canning to be principally a textualist and originalist decision. I argue, to the contrary, that Canning’s textualism and originalism are derivative strategies by which the court attempted to fashion a precautionary rule against presidential aggrandizement. As such Canning is best understood to exemplify a mode of constitutional adjudication that we might call precautionary constitutionalism. As a normative matter, Canning illustrates the major problem of precautionary constitutionalism: myopic focus on a target risk may cause the rulemaker to ignore or underestimate countervailing risks, resulting in unintended, counterproductive or perverse consequences.

Suggested Citation

Vermeule, Adrian, Recess Appointments and Precautionary Constitutionalism (March 28, 2013). 126 Harvard Law Review Forum 122 (2013); Harvard Public Law Working Paper No. 13-19. Available at SSRN: https://ssrn.com/abstract=2241052

Adrian Vermeule (Contact Author)

Harvard Law School ( email )

1525 Massachusetts
Griswold 500
Cambridge, MA 02138
United States

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