Recess Appointments and Precautionary Constitutionalism
Harvard Law School
March 28, 2013
126 Harvard Law Review Forum 122 (2013)
Harvard Public Law Working Paper No. 13-19
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.
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Date posted: March 29, 2013 ; Last revised: June 6, 2013