Antonin Scalia, Judicial Activist
The Supreme Court today rescued presidential recess appointments. That's the big takeaway from the Canning case, which was decided by a deceptive unanimous judgment, but in fact featured a 5-4 split over whether recess appointments should be turned into a constitutional nullity.
There's more to it, and I'll get to in a second post. But the original and interesting dispute had been overshadowed by the Circuit Court opinion, supported by Justice Antonin Scalia (in the minority today), that essentially eliminated all recess appointments.
This turned on two disputed points. One is whether recess appointments are only allowable during intersession recesses or if they also are permissible during intrasession recesses as well. The other question was whether the only vacancies eligible to be filled are those that occur during the present recess, or whether all vacancies are fair game. Current practice (perhaps going back to the beginning of the Republic) has been to interpret both clauses loosely: the president could make a recess appointment for any current vacancy any time the Senate wasn't in Washington . That's what the Court affirmed today. The Circuit Court and Scalia disagreed, which would have had the effect under current conditions of essentially eliminating recess appointments altogether.
Without getting too deeply into the details (more here and here), today's Court, with Justice Stephen Breyer writing, is correct about types of recesses, but the vacancy question is a much closer call.
I'm not a fan of the idea of judicial "activism," but this decision is best understood by thinking of Scalia as a judicial activist, with Breyer in the opposite role. As Breyer writes: "We have not previously interpreted the Clause, and, when doing so for the first time in more than 200 years, we must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached." Scalia argues, however, that this restraint has the effect of handing a victory to the president because it sustains a long-term presidential power grab, and that therefore judicial restraint is by no means neutral.
I'm with Breyer on this one, particularly because no particular principle of abstract justice seems to be at stake here. Whether recess appointments are easy, difficult or impossible certainly will affect the balance of power between president, Senate and executive branch departments. But although Scalia makes a great show in his dissent of talking about the rights of the people against executive encroachment, it's extremely difficult for me to see any such rights at stake. Nor did the Supreme Court have to even get into any of that in a case that could be (and was) disposed of without reaching those larger questions. Therefore, I'm happy to see the court go with restraint here, even though, on the merits, I think the stricter test on vacancy has quite a bit of merit.
The bottom line is that this puts the recess power back where everyone thought it was before 2007, and where most people thought it was before 2009.
A really restrained court, to be sure, would simply have deferred any opinion on grander constitutional doctrine beyond what was necessary to get through this case. The Circuit Court, however, made that a lot more difficult.
This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.
To contact the author on this story:
Jonathan Bernstein at firstname.lastname@example.org