Wednesday, July 02, 2014

Is Noel Canning Consistent With Chadha? But First, the iBrain

by Michael Dorf

With the rush of opinions at the end of the Term, there isn't quite time for us here at DoL to squeeze in our usual blog post accompanying each Verdict column, so this will be a twofer.

1) Professor Colb's latest Verdict column looks at Riley v. California and concludes that it is a very big deal. She is especially impressed with the Court's view that the search of data on a cellphone is in some important ways more intrusive than a home search, given how much information the former can reveal. She thus views Riley as a potential turning point in how the Court conceptualizes the interests the Fourth Amendment protects.

Thinking more broadly about the electronic-versus-home point, one might wonder whether the move has other consequences. E.g., Stanley v. Georgia protected the right to possess obscene--and thus otherwise proscribable--materials in the home; might there come a day when "possession" of obscenity on dedicated use electronic machinery (picture the Apple iBrain, which implants directly into a person's brain) is entitled to as much solicitude as home possession of obscenity? Etc.  (NB: My fictional Apple iBrain is more like a smartphone than the monitoring device that currently goes by the name iBrain.)

2) Meanwhile, my latest Verdict column explores NLRB v. Noel Canning, the recess appointments case. After discussing the ways in which the majority (by Justice Breyer) and the concurrence in the judgment (by Justice Scalia) differ, I call attention to an issue on which they agree: All nine Justices think that: (a) the original purpose of the Recess Appointments Clause was to fill vacancies that happen to go unfilled while the Senate was in session, rather than to circumvent political opposition to Presidential nominees; and (b) therefore, use of the Clause cannot now be justified as a means of overcoming Senate obstructionism.

I argue in the column that (b) does not follow from (a). As a general matter, constitutional provisions are often construed to extend beyond their original purposes. And w/r/t the Appointments Clause in particular, the Senate's transformation of the confirmation power into a tool to hamstring government means that the process has already been politicized, so denying the President the power to respond in kind tilts the playing field.

Here I want to ask whether that last point is consistent with the holding of INS v. Chadha, in which the SCOTUS invalidated the legislative veto. Before getting to my question, I need to distinguish it from a question Justice Scalia poses in his Noel Canning opinion. He says there that the Breyer majority opinion is inconsistent with Chadha because the Canning majority relies on the tradition of intra-session recess appointments and of Presidents making recess appointments to fill vacancies that arose before the Senate went into recess; yet, Justice Scalia says, there was also a tradition of legislative vetoes, and the Court nonetheless found the legislative veto unconstitutional in Chadha; so, he asks, how is the majority's approach consistent with Chadha?.

Somewhat surprisingly, the majority doesn't directly answer Justice Scalia's question, although it's not difficult to imagine what Justice Breyer might say. He could say that the text of Art. I, Sec. 7 is clear about the procedure for a bill becoming a law, whereas the meaning of the Recess Appointments Clause is relevantly unclear. Justice Breyer can admit that longstanding practice cannot override clear constitutional text (as in Chadha) but that it can provide a definitive gloss on unclear text as in (Noel Canning). (He could also say that the traditions in Noel Canning were more longstanding than the tradition in Chadha.)

As I said above, however, there's a different way in which Chadha might be problematic for my view that the President ought to be permitted greater leeway to use the recess appointment power for political purposes in order to counteract the political uses of the confirmation power by the Senate. The problem is this: A similar argument was made and rejected in Chadha. There it was said on behalf of the legislative veto that the complexity of governing in the 20th Century required Congress to delegate enormous power to the executive branch, so that the legislative veto was a means of retaining some policy control; by delegating subject to a legislative veto, it was argued, Congress was giving the executive more power than the executive would have absent the delegation, and so on net there was no aggrandizement of congressional power and thus no violation of the Constitution. Justice White found this argument persuasive, but he wrote a solo dissent. The rest of the Chadha Court flat out rejected the idea that the legislative veto could be justified as compensation for delegation.

Accordingly, one might think that likewise here, the Senate's use of its confirmation power for the purpose of political obstruction does not justify expanding the President's power to make recess appointments by declaring the Senate to be in recess when the Senate, via pro forma sessions, considers itself to be in session.

Yet the answer I would give to this Chadha-based objection is broadly similar to the one I proposed on behalf of Justice Breyer in response to Justice Scalia's Chadha-based objection: Political balancing may be an insufficient basis for overcoming clear constitutional text (as in Art. I, Sec. 7), but it can be sufficient to make the difference in a case where the constitutional text is unclear (as with the Recess Appointments Clause). And once one accepts the majority's argument that the Clause includes intra-session recesses, it is not clear from the text what counts as a recess. So here, by contrast with Chadha, there is room for political balancing to enter into the analysis.

By one account, the Court does this sort of thing quite frequently. In a series of articles on "translation" in the mid-1990s, Larry Lessig argued that the best way to understand some of the federalism doctrines of the Rehnquist Court--including the anti-commandeering rule, the expansion of state sovereign immunity, and the formalist outer limits on the Commerce Clause--was as a kind of compensation: The original understanding of the Constitution's federalism provisions could not be enforced given changed circumstances, and so the Court made up a number of constitutional rules that pushed back somewhat against the nationalizing tendencies. Making up new rules in this way, Lessig offered, kept faith with the original meaning of the Constitution by reading it differently in light of changed circumstances.

Just as Lessig wasn't endorsing any of the particular federalism doctrines fashioned by the Rehnquist Court, so too, I'm not saying that the Court was wrong in Noel Canning to reject the claimed Presidential authority to disregard pro forma sessions. What I am saying (in keeping with what Lessig said about federalism) is that it may be legitimate (even if not necessarily correct in particular circumstances) to fashion doctrine that technically departs from the original design in order to restore the overall original balance. That was Justice White's point in dissent in Chadha, and even if one thinks that he was wrong about the particulars, I think he was right about the big picture.

12 comments:

Justin said...

I know overthinking is your career, but Chadha stands for the proposition that tradition is an insufficient reason for permitting an unconstitutional practice. It does not stand for the proposition that tradition is irrelevant in determining whether the conduct is unconstitutional in the first place. If Breyer said "we find that intra-session recess is unconstitutional but screw it," that would be inconsistent with Chadha.

Justin said...

PS - I don't think what you said is wrong, and we are saying somewhat similar things. I just think your answer is too complicated given how simple the answer is.

- J

Justin said...

One last point:

Under Scalia's logic, shouldn't he have found RFRA unconstitutional because it was passed nearly unanimously and without controversy? ;)

Joe said...

The last comment suggest Scalia is a fan of Calvinball.

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