Recess Appointments: A Final Quick Pre-Argument Note

NLRB v. Noel Canning is to be argued tomorrow (or today, depending on when you read this). The Court has ordered extended argument (90 minutes), and there’s an interesting twist: fifteen minutes on the respondents’ side have been given to Senator Mitch McConnell and 44 other Senators. Appearing as amici, the Senators insist that the Senate was in fact in session when the disputed recess appointments were made. If that’s right, the two questions that have engendered so much heated dispute—the question of intra- versus inter-session “recess(es),” and the question of whether the executive power to make such appointments covers only vacancies that occur during a recess or all existing vacancies—become immaterial.

That, though, wouldn’t render the case uninteresting or inconsequential. The question is, who decides whether the Senate is or isn’t in session—the President, based on a made-for-the-occasion OLC memo, or the Senate? That’s a constitutional question, and the text answers it: the Senate. Miguel Estrada’s brief for the Senators is here. To my mind it’s devastating, and a fun read besides—a fine exposition of the constitutional arrangements at issue, and a wholesale demolition of the administration’s shameless maneuvering in the controversy.

I wouldn’t be the least bit surprised (or disappointed) to see the case go this way. More (hopefully) after the argument.