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The Bipartisan Character of the Original Meaning of the Recess Appointments Clause

There will no doubt be charges that the D.C. Circuit’s Noel Canning decision holding that President Obama’s recess appointments to the NLRB is unconstitutional was a partisan decision.  But the charge is baseless.

It is true that the D.C. Circuit panel of judges were all appointed by Republican Presidents.  And, of course, the Recess Appointments were by Democrat Barack Obama to promote liberal policies on the NLRB.

But that is a short-sighted way to view the decision.  First, the decision, if it stands, will operate to constrain the powers of Presidents of both parties.  Second, the decision is a constraint on Presidents, which is a position that liberals have adopted in the last 50 years more than conservatives.

And, of course, the proof is in the pudding.  Prior to Judge Sentelle’s decision, the only judicial opinion to adopt the same position was written by liberal 11th Circuit Judge Rosemary Barkett (link no longer available), following a brief filed for Ted Kennedy by liberal Marty Lederman.

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on January 29, 2013 at 22:00:32 pm

In fairness, Barkett and Lederman were taking those positions when GWB was making the recess appointments. Lederman has been pretty quiet on the controversy over the Obama recess appointments, although that could be because he was at OLC during the time that it was formulating its current position. I am not saying any judge took his or her position for political reasons, just that this particular evidence isn't going to convince the cynics.

Congratulations, by the way, on DC Circuit victory. I suspect that it was in large part due to the amicus brief submitted by Miguel Estrada on behalf of Senate Republicans, which relied very heavily on your law review article.

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Mike Stern
on February 01, 2013 at 07:30:08 am

[...] Mike Rappaport on another datum omitted by Toobin amid his fevered charges of judicial partisanship: “Prior to [...]

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Image of Jeffrey Toobin on recess appointments - Overlawyered
Jeffrey Toobin on recess appointments - Overlawyered

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.