Justice Kennedy asks for a “limiting principle” in Noel Canning

January 13th, 2014

I had a serious case of deja vu when AMK asked Solicitor General Verrilli for a “limiting principle” in the recess appointment. I assure you, the answer had nothing to do with broccoli, but it did concern food–specifically whether the President could make a recess appointment during a “lunch break.” Here is the exchange:

JUSTICE KENNEDY: Well, of course, Justice Ginsburg’s question points out that your argument is, it seems to me, in search of a limiting principle. A lunch break, a one-day break — you’ve — you’ve thought about this — a 3-day break, a 1-week break, a 1-month break; how do you resolve that problem for us?

Update: And what was Verrilli’s limiting principle? He turned the question on its head, and said the recess-appointment power had to mean something, and that it was up to the President to decide the contours of this authority.

GENERAL VERRILLI: I think there has to be a limit to that point, Justice Kagan, because, after all, what we’re talking about here is a power that the Constitution gives to the President, the power in Article II. And the President has got to make the determination of when there’s a recess.