2014 Sup. Ct. Rev. 1 (2014)

handle is hein.journals/suprev2014 and id is 1 raw text is: 






                          CURTIS A. BRADLEY AND
                                          NEIL S. SIEGEL





AFTER RECESS: HISTORICAL PRACTICE,

TEXTUAL AMBIGUITY, AND

CONSTITUTIONAL ADVERSE

POSSESSION






The Supreme Court's decision last Term in NLRB v Noel Canning
contains an especially strong and sustained endorsement of the rel-
evance of historical practice to discerning the Constitution's distri-
bution of authority between Congress and the President.1 In inter-
preting the scope of the Recess Appointments Clause,2 the Court
gave significant attention to how governmental actors had under-
stood and applied the clause throughout history. The Court did so,
moreover, as part of a self-conscious approach to constitutional in-
terpretation. When construing constitutional provisions regulating

  Curtis A. Bradley is the William Van Alstyne Professor of Law, Duke Law School, and
Neil S. Siegel is the David W. Ichel Professor of Law, Duke Law School.
  AUTHORS' NOTE: For their helpful comments and suggestions, we thank Will Baude, Stuart
Benjamin, Joseph Blocher, Guy Charles, Richard Fallon, Darrell Miller, Jeff Powell, Jed
Purdy, Stephen Sachs, Jim Salzman, Chris Schroeder, Peter Spiro, David Strauss, and Jon-
athan Wiener, as well as participants in the inaugural Yale-Duke Foreign Relations Law
Roundtable.
   See 134 S Ct 2550 (2014).
   US Const, Art II,  2, cl 3 (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.).

C 2015 by The University of Chicago. All rights reserved.
978-0-226-26906-1/2015/2014-0001$10.00


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