The Truth About the Supreme Court's Recess-Appointments Ruling: A Debate

Abstract

In this 4-part debate, first posted August 7-8, 2014, on the Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law, Professors Wildenthal and Semeraro discuss the Supreme Court's 2014 decision in National Labor Relations Board (NLRB) v. Noel Canning, concerning the scope of the president's power to make appointments without Senate confirmation during recesses of the Senate, as provided in the Constitution's Recess-Appointments Clause.

They discuss the competing views of constitutional history and interpretation set forth by the Court's opinion written by Justice Stephen Breyer (for five Justices, placing some limits on the president's recess-appointment powers but upholding a relatively broad scope for the clause), and the concurrence (dissenting in substantial effect) by Justice Antonin Scalia (for four Justices, arguing that a very narrow scope for the clause is dictated by constitutional text and history).

Professor Wildenthal praises Justice Scalia's opinion and its criticisms of the Court's approach.

Professor Semeraro defends Justice Breyer's opinion for the Court and questions the premises of the originalist and textualist approach taken by Justice Scalia and defended by Professor Wildenthal.

Keywords: NLRB v Noel Canning, recess appointments, constitutional interpretation, originalism, textualism, nonoriginalism, living Constitution

JEL Classification: K19