“In any event, the limitation upon the President’s appointment power is there not for the benefit of the Senate, but for the protection of the people; it should not be dependent on Senate action for its existence…

…The real tragedy of today’s decision is not simply the abolition of the Constitution’s limits on the recess appointment power and the substitution of a novel framework invented by this Court. It is the damage done to our separation-of-powers jurisprudence more generally….”, Supreme Court Justice Antonin Scalia, concurring in judgment only on NLRB v. Canning

 

NOTABLE & QUOTABLE

Notable & Quotable: Scalia on NLRB v. Canning

Supreme Court Justice Antonin Scalia, concurring in judgment only, says the court’s NLRB v. Noel Canning ruling does serious damage to separation-of-powers jurisprudence.

June 26, 2014 6:53 p.m. ET

Supreme Court Justice Antonin Scalia concurring in judgment only in the court’s June 26 unanimous decision in NLRB v. Noel Canning that President Obama’s recess appointments to the National Labor Relations Board were invalid:

The majority replaces the Constitution’s text with a new set of judge-made rules to govern recess appointments. Henceforth, the Senate can avoid triggering the President’s now-vast recess-appointment power by the odd contrivance of never adjourning for more than three days without holding a pro forma session at which it is understood that no business will be conducted. Ante, at 33–34. How this new regime will work in practice remains to be seen. Perhaps it will reduce the prevalence of recess appointments. But perhaps not: Members of the President’s party in Congress may be able to prevent the Senate from holding pro forma sessions with the necessary frequency, and if the House and Senate disagree, the President may be able to adjourn both “to such Time as he shall think proper.” U. S. Const., Art. II, §3. In any event, the limitation upon the President’s appointment power is there not for the benefit of the Senate, but for the protection of the people; it should not be dependent on Senate action for its existence.

The real tragedy of today’s decision is not simply the abolition of the Constitution’s limits on the recess appointment power and the substitution of a novel framework invented by this Court. It is the damage done to our separation-of-powers jurisprudence more generally. It is not every day that we encounter a proper case or controversy requiring interpretation of the Constitution’s structural provisions. Most of the time, the interpretation of those provisions is left to the political branches—which, in deciding how much respect to afford the constitutional text, often take their cues from this Court. We should therefore take every opportunity to affirm the primacy of the Constitution’s enduring principles over the politics of the moment. Our failure to do so today will resonate well beyond the particular dispute at hand. Sad, but true: The Court’s embrace of the adverse-possession theory of executive power (a characterization the majority resists but does not refute) will be cited in diverse contexts, including those presently unimagined, and will have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers.

I concur in the judgment only.

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Posted on June 27, 2014, in Postings. Bookmark the permalink. Leave a comment.

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