About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

127 Harv. L. Rev. F. 1 (2013-2014)

handle is hein.journals/forharoc127 and id is 1 raw text is: THE SENATE AND THE RECESS APPOINTMENTS David J. Arkush* INTRODUCTION The Senate and the President have sparred over recess appoint- ments for nearly a decade, and the Supreme Court is poised to weigh in. National Labor Relations Board v. Noel Canning1 asks the Court to choose between polar positions: either the Senate can block all pres- idential appointments by refusing to confirm nominees and refusing to go on recess, or the Senate's advice and consent authority may be re- duced to nullity because the President can appoint officers during vir- tually any Senate break. As a result, the case may dramatically reallo- cate power between the President and the Senate. This Essay responds to two widely held but mistaken views about the controversy that have harmed judicial review and scholarly debate. The first is that Noel Canning presents a classic conflict between the President and the Senate. This view misses that the Senate majority has the power to decide when the Senate is in recess, and in December 2011 it likely intended to hold a recess that would enable presidential appointments. The Senate initiated pro forma sessions not because the majority wanted to - or because the minority filibustered an attempt to adjourn - but because the Speaker of the House of Representatives claimed to prevent the Senate from taking a recess. His actions were likely unconstitutional. The second mistaken view is that courts should resolve Noel Can- ning by defining the term recess, as the lower courts have done.2 At least one commentator has rejected this perspective, arguing that the President holds exclusive authority to decide when the Senate is in re- cess.3 Both views are mistaken. Because the Senate majority is em- powered to decide when the Senate is in recess, the question for courts * Visiting Assistant Professor, University of Richmond School of Law. Thanks to Brian Wolfman and Gerard Magliocca for comments on a draft of this Essay. 1 705 F.3d 490 (D.C. Cir. 2013), cert. granted, 133 S. Ct. 2861 (2o13). 2 See id. at 499-5o7; NLRB v. Enter. Leasing Co., 722 F.3d 6og, 633-52 (4th Cir. 2013); NLRB v. New Vista Nursing and Rehab., 719 F.3d 203, 207-08 (3d Cir. 2013). This Essay con- cerns two of the three questions on which the Court granted certiorari: the constitutionality of recess appointments during pro forma Senate sessions and during an intrasession recess. 3 See Victor Williams, Opinion, Recess Appointment Challenges, NAT'L L.J., Nov. 26, 2012, at 22.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most