Monday, September 29, 2014

Is Noel Canning a Victory for the Living Constitution? Constitutional Interpretation in an Age of Political Polarization


When Noel Canning v. NLRB was decided last June, several commentators noted that the 5-4 vote marked a victory for living constitutionalism (represented by Justice Breyer's opinion) and a defeat for originalism (represented by Justice Scalia's concurrence, which read like a dissent).

In fact, Breyer's opinion isn't particularly living constitutionalist. It is traditionalist. It is strongly rooted in past practice. It argues that we should not disturb conventions that are of long-standing. If living constitutionalism is the idea that the Constitution should be interpreted to keep abreast of changing times and conditions, Breyer’s Noel Canning opinion doesn't seem all that interested in *that* project. The opinion argues, instead, that there is a long history of interpreting the recess appointments clause in a particular way, and we should retain it unless there are strong considerations otherwise.  If you applied the logic of this opinion to same-sex marriage, you would quickly discover that Breyer sounds much more like a conservative traditionalist than a living constitutionalist.  Indeed, I can easily imagine parts of Breyer's opinion being quoted by conservatives to criticize liberals in later cases.  (You read it here first.)

Conversely, Scalia's opinion, although framed in the language of originalism and textualism, is the truly revolutionary opinion. Here (in marked contrast to many of his other writings) Scalia is skeptical of arguments from tradition. He argues that deferring to an imagined tradition tends to favor stronger parties (Presidents, who can act decisively) over weaker ones (Congress, which faces collective action problems). He asserts that there is no unbroken history of established practice. And even if there is such a history, (1) it may not be worthy of our respect because it reflects past usurpations of power; and (2) we should disregard it in favor of the text. Scalia’s argument in Noel Canning is radical, not in the sense of being left-wing, but radical in the sense of seeking to return to the root of things and argue them once again based on first principles.  But of course, that’s what originalism is—radical, not conservative.

Indeed, I would go much further.  A central claim of my recent scholarship has been that we are continually misled by accepting the familiar opposition between originalism and the idea of a living Constitution.  For example, I have argued that the originalism of the modern conservative movement *is* living constitutionalism-- it is the living constitutionalism of movement conservatives, who want to reform and redeem American constitutionalism, which they believe took a wrong turn in the middle of the twentieth century.  Like the great liberal Justice Hugo Black before them, contemporary conservatives have adopted the language of originalism and textualism to achieve their revolutionary goals. In Noel Canning, Scalia does not sound at all Burkean-- he sounds like a man who wants to shake things up.

Why is it necessary to shake things up? This brings us to another feature of the two opinions-- their relationship to contemporary politics, and, in particular, to the perhaps the most important feature of that politics--political polarization.  Breyer's opinion in Noel Canning is much less interested than Scalia's in making constitutional interpretation take account of changing conditions in constitutional politics. Once again, if you think that living constitutionalism is about adapting to changed conditions, then Breyer's opinion is much less living constitutionalist than Scalia's.

In fact, Breyer's opinion is centrally concerned with preserving the status quo. It does not treat today's polarized politics as an important consideration. It is true, Breyer suggests at one point, that presidents may use existing conventions (now codified in Noel Canning) to do end-runs around the Senate. But he does not regard this as a particularly worrisome result.  Moreover, if the Senate is worried about end-runs, his opinion allows the Senate to refuse to adjourn in order to prevent them.

Scalia's opinion, by contrast, must be understood in the context of the new reality of party polarization and conflict extension. It responds to a changed political environment in which the opposition party finds that it disagrees with the President about almost everything in domestic politics. In this new world, movement conservatives have come to recognize the constitutional importance of checking domestic policymaking by presidents, especially liberal Democratic presidents like Barack Obama. Once political polarization becomes entrenched, constitutional values of checking and slowing down government regulation become especially important, especially to people whose constitutional values generally oppose government regulation. This theme occurs throughout Scalia's dissent-- he downplays the importance of efficient government to our constitutional system, arguing that separation of powers properly values liberty over efficiency. In this context, "liberty" means preventing presidents from creating new regulations or enforcing existing regulations through their control of administrative agencies.

Scalia's focus on liberty as a key constitutional value of separation of powers (i.e., the ability of the system to prevent unwise regulation) reflects the political history that led to the Noel Canning litigation.  After President Obama was elected in 2008, Republicans feared that the economic crisis and Obama’s election would lead to a resurgence of activist government. Therefore they sought to limit Obama's ambitions and restrict his attempts at reform. Republicans in the Senate repeatedly filibustered a number of his appointments, especially to the NLRB and to the new Consumer Financial Protection Bureau created by Dodd-Frank.  Republicans hoped that by preventing appointments, they could cripple agencies that promoted regulatory policies they thought were especially bad for the country. (Indeed, Republicans refused to appoint anyone to the Dodd-Frank consumer protection agency for a time, no matter how qualified, until Democrats agreed to pass new legislation.)

That left the possibility of recess appointments to get around Republican filibusters. Republicans were determined to prevent that from happening, but they could do little while the Democrats controlled both Houses of Congress. The Noel Canning litigation arose because of the 2010 elections, which gave control of the House to the Republicans. The Republican-controlled House prevented the Democratic- controlled Senate from adjourning for more than three days, in order to prevent recess appointments. The Senate, also responding to the new political reality of polarization, abolished the filibuster for executive branch appointments and lower federal court appointments.

Whether one agrees with Scalia or not, his opinion is far more attuned to the new realities of party polarization than Breyer's majority opinion, and therefore it has a far greater claim to be an attempt to keep the interpretation of the Constitution in line with changing circumstances. Because of political polarization and conflict extension, presidents will increasingly be tempted to use recess appointments as a means of circumventing the other party, whether the opposition party controls either the Senate or (as in this case,) the House.  In order to prevent these end-runs from occurring, the Court must adopt an interpretation of the Recess Appointments Clause that prevents most recess appointments.  Although it is couched in the language of originalism and textualism-- and therefore would seem to be a timeless claim about the correct interpretation of the Constitution at any point in history--it is an adaptation to changed circumstances.  But that should hardly be surprising. Self-styled originalist arguments by legal officials and movement advocates-- no matter how much they may present themselves as timeless truths--are often responses to perceived defects in current conditions.  That is because—although originalist academic theory may be separated from politics—originalism in practice is very often tied to reform projects in politics.

Obviously the dissent's interpretation of the recess appointments clause hinders future Republican presidents as much as future Democratic presidents. But from the perspective of movement conservatives and their constitutional values, that is a bargain well worth taking. Party polarization means that when Democrats succeed at their policy initiatives, they will do things that almost no Republicans think are worth doing. Moreover, conservatives understand that Democrats are far more likely to grow government in ways that conservatives do not like. To movement conservatives, then, the greatest danger we face today is ever-expanding government regulation led by an ambitious and overweening executive.  Their experience with Barack Obama is proof that these dangers are real. If that is the world we live in--and that we are likely to live in for some time--it makes more sense to limit the growth of presidential power in domestic policymaking. It is much more important to limit the ability of Democratic presidents to engage in unchecked domestic policymaking than it is to empower Republican presidents.

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