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Professors Wildenthal and Semeraro Debate NLRB v Noel Canning

August 15, 2014

Thomas Jefferson School of Law Professors and Stanford Law Alumni Bryan Wildenthal and Steven Semeraro, furthered Constitutional debate on The Originalism Blog following publication of a New York Times editorial on the Supreme Court’s holding in NLRB v Noel Canning.

Professor Wildenthal, whose scholarly works largely focus on constitutional law and history, describes the holding as a, “narrow ruling agreed upon unanimously by all 9 Justices, that a president cannot simply unilaterally override the Senate’s own position that it has remained in session (albeit “pro forma”) in order to block a presidential “recess appointment” (bypassing Senate confirmation).”

“The more fundamental issues decided in this case go to broader issues of the President’s recess-appointment powers,” Wildenthal explained. “They may have somewhat limited practical significance, since the Court upheld the Senate’s ability to block such appointments by staying in “pro forma session,” but they are still inherently important and for what they say about the Justices’s competing views and uses (or misuses) of history.”

Wildenthal added, “Like Justice Scalia, I also can conceive of no sane constitutional theory under which this evidence of ‘historical practice’—which is actually evidence of a long-simmering inter-branch conflict—would require us to defer to the views of the Executive Branch.”

Professor Semeraro, Book Review Editor of the American Journal of Legal History, pointed out that, “Although the recess appointment clause should not empower a President to routinely avoid Senate input on appointments, it should enable the President make the appointments necessary to enable the government to do its work within a reasonable period of time whether the Senate acts irresponsibly by (1) calling an unreasonably long recess to delay the appointment; or (2) refusing to provide advice and consent and holding phony sessions to pretend that no recess has occurred.”

“I would criticize the majority opinion for failing to follow through on its initially correct interpretation of the clause by excluding “political disagreement” as a potential justification for a recess appointment. Overwhelmingly, political disagreement has been the reason for recess appointments,” Semeraro continued.

In response Wildenthal explained, “The Constitution clearly and explicitly provides both the Senate and President with certain raw powers, and simply because one side or the other acts childishly in “abusing” such powers (i.e., using them in a way that infuriates the other side), I do not think we have established that the Constitution has been violated. The power to give “consent” includes the power to deny it — for any reason, and I do not see how the Constitution validates certain reasons and rules off limits other reasons that a President or a Supreme Court may assess as not worthy or “serious” or “responsible” enough.”

“Bryan Wildenthal makes an unassailable case for a narrow recess appointment power if one believes that the goal of constitutional analysis should be to determine the meaning of the Constitution’s words in the sense of what an educated reader in 1791 would have thought that the words meant as applied to then-contemporary issues,” Semeraro admits.

“I disagree with his method because I don’t think that it can be justified,” said Semeraro. “Original meaning analysis most plausibly rests on the notion that the Constitution was ratified through a democratic process, and we should therefore interpret it to mean what those who voted to ratify it thought that it meant when they cast their ballots,” Semeraro explained. “Presumably, ratifying voters thought that the words meant what dictionaries of the day defined them to mean. At that level of generality, original meaning interpretation sounds reasonable. But if one focuses more specifically on what ratifying voters may have thought, original meaning analysis strikes me as either unjustifiable or indistinguishable from living constitutionalism.”

“Living constitutionalism, as I understand it, is thus the application of what thoughtful ratifying voters would have anticipated. It has little to do with the notion that the Constitution is old and outdated. It rests on the notion that even one day after ratification, issues would arise on which the Constitution’s words may apply, but that neither the drafters nor the ratifying voters would have anticipated. For a living constitutionalist, those issues should be resolved by determining how the principles embodied in the Constitution could best be applied to new questions,” Semeraro concluded.

The complete text may be found at The Originalism Blog, a publication by the Center for the Study of Constitutional Originalism at the University Of San Diego School Of Law.