Conservatives have been celebrating Noel Canning, the recent Supreme Court decision on recess appointments, because President Obama lost 9-0. But in reality the case was a loss both for liberty and the rule of law. While the result was unanimous, the reasoning in Justice Stephen Breyer’s five-person majority dramatically diverged from Justice Antonin Scalia’s four-person concurrence. And it is the reasoning, not the result, that may shape our constitutional future. Justice Breyer’s majority opinion elevates practices of the President and Congress over the original meaning of the Constitution. Adoption of Breyer’s principle of constitutional interpretation threatens our liberty.
The Recess Appointment Clause provides: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Breyer’s majority opinion permitted the President to make recess appointments during intrasession recesses, not only at the end of the congressional session, and to fill vacancies that happen at any time, not only vacancies that happen during recesses. Those holdings provide the President with potentially substantial recess appointments power, assuming that the Senate in fact takes intrasession recesses.