Balkinization  

Monday, February 11, 2013

Noel Canning and Constitutional Theory

Mark Tushnet

There's been a lot of discussion of the politics of the Noel Canning decision holding President Obama's recess appointments (and, retrospectively, lots of other Presidents' recess appointments) unconstitutional. Some of the discussion has dealt with the opinion's use of originalism as a theory of constitutional interpretation. Here I'll discuss a couple of other intersections of the decision with constitutional theory.

The first involves what happens when the adjudicated or legalized Constitution runs up against the non-legalized Constitution. As everyone knows, the recess appointments occurred because Republicans in the Senate played what I've called constitutional hardball. Constitutional hardball happens when one political party departs from previously taken-for-granted behaviors in the ordinary political process -- for example, using the filibuster to disable an administrative agency from operating. (I should note that one feature of constitutional hardball is that both sides say, "You started it," so that a Republican might observe that this particular episode of constitutional hardball began when the Democrats in the Senate abused their power over agenda-setting -- a claim more plausible with respect to the Consumer Financial Protection Board than to the NLRB.) In Noel Canning the circuit responded to the administration's moves in the game of constitutional hardball -- which is ordinarily a political game -- by invoking the adjudicated Constitution. But, note that there might be an asymmetry here: The administration's move is subject to the adjudicated Constitution but the Republicans' move isn't.

"In the past" (perhaps I romanticize here), the solution would have been obvious: The courts should invoke the political question doctrine with respect to all the moves in constitutional hardball. Let the political branches work the problems out, perhaps ultimately by recourse to the people ("elections have consequences" and all that). But now the second point about constitutional theory arises. The political question doctrine has been what I've called "doctrinalized" in Baker v. Carr. It's been given a rule-like form that makes it unavailable for the kind of flexible use that would be needed to deal with constitutional hardball, because the "takens-for-granted" that constitutional hardball challenges come in too many forms and can change subtly or dramatically in ways that doctrine can't handle well.

I have nothing interesting to say about the substance of the Noel Canning opinion, but thought it worth noting its connection to a different kind of constitutional theorizing than originalism and that stuff.

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