Monday, January 12, 2015

After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession

Neil Siegel

My colleague Curt Bradley and I are writing the Supreme Court Review piece on NLRB v. Noel Canning. We view the decision as exemplifying the phenomenon of constructed constraint, and we use it as an opportunity both to critique the idea of constitutional “liquidation,” and to defend a version of the “historical gloss” approach to the separation of powers from the charge of blessing expansions of executive power by “adverse possession.”

Here is the abstract:

The Supreme Court’s interpretation of the Recess Appointments Clause in NLRB v. Noel Canning stands as one of the Supreme Court’s most significant endorsements of the relevance of “historical gloss” to the interpretation of the separation of powers. This Article uses the decision as a vehicle for examining the relationship between interpretive methodology and historical practice, and between historical practice and textual ambiguity. As the Article explains, Noel Canning exemplifies how the constitutional text, perceptions about clarity or ambiguity, and “extra-textual” considerations such as historical practice operate interactively rather than as separate elements of interpretation. The decision also provides a useful entry point into critically analyzing the concept of constitutional “liquidation,” which the majority in Noel Canning seemed to conflate with historical gloss but which seems more consistent with the approach to historical practice reflected in Justice Scalia’s concurrence in the judgment. Finally, this Article argues that the historical gloss approach, when applied cautiously and with sensitivity to the potential concerns raised by Justice Scalia and others, is not vulnerable to the charge of licensing executive aggrandizement by “adverse possession.”

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