The Court’s Constitutional Folly in Noel Canning

Posted by Jeffrey Toobin, The New Yorker

The Noel Canning decision was probably correct. All nine Justices agreed on the core issue, after all. In their view, the method by which President Barack Obama made recess appointments to the National Labor Relations Board violated the Constitution. But think about what that means: President Obama will continue to struggle to staff and run his Administration. Republicans will continue to block and delay Presidential appointments at all levels.

This is what the Constitution, apparently, allows. So maybe the problem isn’t the Justices; it’s the Constitution.

Consider various absurdities in this case.

The modern silliness of the recess-appointments clause. The eighteenth-century origins of the recess-appointments clause are clear. The clause, in Article II, states, “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.” In the early days of the Republic, when travel was slow, the President had to be able to staff his Administration when the Senate was out of session. But what relevance does that rule have in today’s world? What purpose does this relic serve?

(More here.)