Case Comment 128 Harv. L. Rev. 124

The Supreme Court as a Constitutional Court

Noel Canning and judicial design



Political institutions are always works in progress. Their practical duties and aims as instruments of governance may not always match their constitutional blueprints or historical roles. Political offices might not always have the power to do what their constituent officers either need or want to do. A polity’s assessment of whether the desired power is a need or a want may indeed mark a boundary between law and politics in the domain of institutional structure. The law gives, or is interpreted to give, political organs the tools they need to function effectively. They must fight for the rest.

Dissonance between form and function pervaded the dispute that led to last Term’s decision in National Labor Relations Board v. Noel Canning. The President has a constitutional duty to take care that the laws be faithfully executed. Part of that duty consists in appointing officers to staff administrative agencies created by Congress to fulfill the missions set forth in their organic statutes. Here, the five-member National Labor Relations Board (“NLRB” or “Board”) could not perform its mission — most prominently, resolving claims of unfair labor practices — because the Senate had delayed votes (or credibly threatened to do so) on several of President Obama’s nominees to fill Board vacancies.

In response, the President engaged in what Professor David Pozen calls “constitutional self-help.” Article II of the Constitution conditions the executive appointment power on “the Advice and Consent of the Senate” but further provides that the President “shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” President Obama purported to exercise this recess appointment power for three Board vacancies on January 4, 2012, when he appointed Sharon Block, Terence Flynn, and Richard Griffin to the Board. The appointments were made the day after the Senate conducted a pro forma ritual gaveling in the second session of the 112th Congress but nineteen days before the Senate would next conduct formal business. Per the Administration’s interpretation of Article II, this period was a “Recess of the Senate,” and so (absent Senate confirmation or a superseding appointment) the three NLRB appointments would last until the first session of the 113th Congress ended in January 2014.

From the perspective of Senate Republicans and Noel Canning, a cola distributor serving as the nominal respondent, there were three problems with these appointments. First, under their reading of Article II, the President’s authority to make recess appointments is active only between rather than within formal sessions of the Senate. That is, recess appointments are valid only when made during the period following an adjournment sine die — one of indefinite length — and preceding the gaveling in of a new session. Second, even if the Senate had been in recess as defined by Article II, the Recess Appointments Clause is triggered only for vacancies that arise during the recess itself. None of the three NLRB vacancies qualified. Finally, even if the President may fill preexisting vacancies through recess appointments, and even if an intrasession recess may count for this purpose, the Senate might not have been in any kind of recess (or might have been in too short a recess) on January 4, 2012. The pro forma sessions, in which a single Senator gavels in and then immediately adjourns a session every three days or so, were designed in part to keep the Senate in perpetual operation as a means of preventing recess appointments. In other words, the specter of unilateral appointments by the President during an intrasession recess had led Congress to its own form of self-help.

By a 5–4 margin, the Court rejected the first two of these claims and accepted the third, holding that pro forma sessions of the Senate were sufficient to prevent a recess of adequate length to activate the President’s unilateral appointment power. In so doing, the Court abided significant disruption to the work of the NLRB and narrowly averted more. Had the Court accepted all of the arguments of Noel Canning, the NLRB would have consistently lacked a quorum from August 28, 2011, when a term expiration left only two legally appointed Board members, until July 30, 2013, when the Senate confirmed five of President Obama’s nominees to the Board as part of a deal between the President and Senate Republicans. During that nearly two-year period, the Board issued more than 1,300 decisions, more than 1,000 of which appear to have been legally invalid in light of the Court’s holding. More broadly, each of the last six Presidents, and at least thirteen of the last sixteen, has made recess appointments within sessions of the Senate. At least thirty-seven Presidents, perhaps including Washington, have made recess appointments for vacancies that arose prior to the recess itself. Had Justice Scalia’s concurring opinion agreeing with all three of Noel Canning’s arguments prevailed, the legitimacy, if not the legality, of actions taken by every officer so appointed would have been in doubt.

Noel Canning raised an unusual number of interesting constitutional questions. What should a court do if and when it finds that the text of the Constitution and historical practice are at odds? How much deference should the Court give the executive branch in interpreting the reach of the President’s own constitutional authority? What weight should be given to implicit congressional acquiescence in executive constitutional construction? How should that acquiescence be measured? How should constitutional adjudicators respond when the meaning of the text becomes unmoored from its purposes?

None of these questions has escaped the notice of commentators, but an antecedent question has. Much of the academic discourse around Noel Canning has focused on questions of constitutional interpretation. This Comment invites us to think of the case instead — or better, in addition — as implicating fundamental questions of constitutional design, and judicial design in particular. As Part I explains, Noel Canning is as much about when the Court should engage interpretive questions as it is about how it should do so. Political practice carries no guarantee of political settlement, and there may be instances in which the Court does better to forestall practice in the name of definitive resolution. In this case, the President made the recess appointments on January 4, 2012, and recess-appointed Board members began issuing decisions the same month, yet Noel Canning was decided more than 900 days later. Debate between the President and the Senate over the scope of the Recess Appointments Clause began in the eighteenth century, but the Court chose to resolve it in 2014. These delays are not the happy by-product of political constitutionalism; they are serious side effects of the Court’s own traditional decisional procedures.

Part II explores those procedures and their limitations in greater detail. The Court’s criteria for certiorari reflexively encourage ripening of issues in lower courts with no special attention to the costs and benefits of doing so in particular classes of cases. An emergency petition brought soon after the D.C. Circuit ruled in Noel Canning’s favor could have brought the issues before the Court a full Term earlier, but the petition was quickly denied. The claimed constitutional injury in this case was to the Senate and its institutional prerogatives, yet the case was prosecuted by a private citizen, the Noel Canning Corporation. The Court’s narrow decision validating the Senate’s pro forma sessions was sufficient to resolve the entire case, but leaving it at that — which, to the Court’s credit, it did not — would have left considerable uncertainty in other pending cases.

Different procedural choices would have mitigated or eliminated some of these problems. Permitting early or even abstract review of the constitutionality of recess appointments of this sort would have enabled the Court to authoritatively resolve the conflict before the appointees could take office and issue coercive and reliance-generating orders. Granting standing to the Senate itself, or to a minority of the Senate, would have ensured that the timing and scope of litigation closely matched the claimed constitutional harm. Explicitly empowering the Court to formulate broad decisional rules and remedial orders that extended beyond the parties to the case would have left it free to respond to significant downstream legal questions immediately and without apology.

Procedural devices that would have addressed the “when” problem in Noel Canning — abstract review, institutional standing, and erga omnes decisional authority — are familiar to constitutional courts, common in Europe and Latin America, that are specifically empowered to adjudicate public law disputes. The forms these courts take are meant to fit the powers they exercise. The time is ripe to consider whether the U.S. Supreme Court might better match form to function without substantial disruption to its institutional DNA.

The details matter, but brevity and prudence caution against completely developing them here. Part III offers the following preliminary suggestion: where constitutional disputes concern a rule that specifies the division of powers between governmental institutions, the Court should be permitted to engage in abstract review, to grant institutional standing to public organs, and to bind nonparties to the case. Indeed, the very notion of a “case” as the unit of adjudication is a poor fit for the purely public nature of the disputes this Comment contemplates, and of which Noel Canning is exemplary. The notion of a constitutional rule, as distinct from a standard or principle, draws on the new originalism literature, which increasingly distinguishes between the hardwired parts of the Constitution that are more susceptible to a fixed meaning and the more open-ended provisions that are necessarily and appropriately subject to construction over time through evolving political practice and judicial decision rules. Constitutional rules embody a design preference in favor of greater certainty at the cost of inflexibility in the face of new information or changing values. Rules are therefore relatively well suited to expeditious resolution of conflicts over how they should be applied.

This suggestion complements rather than displaces the academic focus on interpretation as the core of the dispute in Noel Canning. The case has been styled as a clash between constitutional text and political practice, but a court operating on a common law dispute resolution model should not confront this conflict. The prospect that decades or even centuries of practice might be jettisoned based on linguistic analysis of the constitutional text is an artifact of an aggressive originalism, a kind of unbridled civil law thinking. Both proponents and detractors of new originalism have noted its indifference to judicial restraint. Judicial activism is hardly new, but if it is to be reactionary rather than progressive, restoring the past without regard to what has followed, then greater attention to its procedural prerequisites is needed.

Professor Alexander Bickel famously argued for a third way, an essential adjunct to the Court’s power either to invalidate or to validate the actions of the political branches. By relying on what Bickel called the “passive virtues” — refusal to grant substantive review through use of tools such as the standing, mootness, ripeness, and political question doctrines — the Court could reserve its precious legitimating power for instances in which it would have the courage to exercise that power according to principle. But what if we assume the Court to be tempted not by excessive expediency but by blind adherence to principle? In that case, we might wish above all to discipline the exercise of principle through procedural devices that facilitate its coexistence with practical realities. Accommodating practice and principle might sometimes require the Court not only to avoid deciding what it otherwise would but also to decide what it otherwise would not. Here, then, is a fourth way.