Is Recess Over?

Is Recess Over?: I am suggesting a split decision here: The Senate wins (and thus so does Noel Canning), but the D.C. Circuit’s dictionary loses. It is worth remembering that constitutional ambiguities between the branches are normally worked out in practice; even after the Supreme Court declared that legislative vetoes were unconstitutional, in the 1983 Chadha case, Congress and the president continued to put them into law because they were too useful a powersharing device to set aside. True, the recess appointment power is less crucial when the president commands a partisan majority in the Senate in the post-”nuclear option” era. But that will not always be the case. And firmly on the side of Supreme pragmatism is that endorsing the entire D.C. Circuit holding would be to wipe out not just administrative decisions made by hundreds of recess appointees over time (indeed, since 1867?) but, presumably, to vacate decisions made by the many judges appointed this manner. Given that several appointees to the current court share a background in the executive branch (Chief Justice John Roberts’s job in the Reagan administration was to defend things like recess appointments), I’d be surprised to see them go that far.