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.