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, following a brief filed for Ted Kennedy by liberal Marty Lederman.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. says

    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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