Thursday, June 26, 2014

Noel Canning, Constitutional Hardball, and Constitutional Workarounds

Mark Tushnet

Noel Canning illustrates something about the political dynamics of constitutional law. Aphoristically (and a little inaccurately): Constitutional hardball elicits constitutional workarounds. Constitutional hardball consists of practices that are constitutionally permissible but that breach previously accepted norms of political behavior, adopted to ensure the smooth functioning of a government in a two-party world, engaged in precisely to disrupt that smooth functioning. Constitutional workarounds are practices that seem consistent with the Constitution's text but are in some tension with the apparent purposes of specific constitutional provisions.

Noel Canning starts with constitutional hardball. At first (as I understand it), Senate Democrats adopted the practice of holding pro forma sessions every three days precisely to prevent President George W. Bush from making recess appointments (until, if I recall correctly, they and he reached an agreement about the appointment process). Why, though, was the Democratic Senate holding pro forma sessions with a Democratic President in office? The Constitution says, "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days...." As I understand it, when the Republican controlled House left town without agreeing with the Senate on adjournment, the Senate was effectively forced to remain in session. So, the House Republicans were now playing hardball. (I don't know whether the House Republicans adopted this tactic to prevent President Obama from making recess appointments.)

President Obama responded with a workaround through the recess appointment power. Noel Canning says that he couldn't do that. One blogger has said, "The ruling effectively gives a road map to future Senates to block[] a president from the other party from ever employing the recess power, holding that the Senate is in session whenever it claims to be." Note, though, that this wasn't the situation that gave rise to Noel Canning. And, in the situation as it actually existed (and, I think, in the situation the blogger imagines), there's another workaround. The Constitution gives the President the following power: "in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper." So, facing the situation that precipitated Noel Canning, perhaps the President can now adjourn the House and Senate, triggering his power to make recess appointments.

Nothing's ever certain about the Constitution. As Tom Goldstein observed while live-blogging about the decision, the power to adjourn has never been tested. A prefatory phrase that seems to deal with convening Congress refers to "extraordinary Occasions," and perhaps that would carry over to the adjournment power. And, perhaps, the departure of the House might not count as "disagreement" over adjournment. Still, the Noel Canning saga may not yet be over.

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