The day after the Noel Canning case involving the Recess Appointments Clause came down, the Federalist Society held a teleforum conference on the issue. I was on a panel with Noel Canning’s attorney in the Supreme Court, Noel Francisco, as well as Professor Kristin Hickman from Minnesota Law School.
Kristin raised an interesting point. She argued that one of the principal motivations for Justice Breyer’s majority decision relying on practice to allow a broad recess appointment power was a strong reluctance for the Supreme Court to hold that hundreds of recess appointments by Presidents had been unconstitutional.
I am not sure that this Justice Breyer’s real motivation. Another possibility is that he favors a broad recess appointment power because he has a strong sympathy for bureaucracy and bureaucratic efficiency. Bureaucracy gets things done. Politics, like the requirement of Senate confirmation, may impede such efficiency.
But let’s assume that Justice Breyer really was reluctant to hold this presidential practice unconstitutional. Is that a legitimate motivation?
Absolutely not! While it will be harmful to the credibility of the President and the government to acknowledge they were violating the Constitution, it is more important to the Constitution and to the rule of law – as well as the integrity of the Supreme Court – to announce that the government has been violating the law. If the Supreme Court ignores the law – and allows in Justice Scalia’s phrase, an adverse possession constitution – this contributes all the more to an illegal government and to incentivizing the executive to ignore the law.