One of Justice Scalia’s more memorable lines in Noel Canning is that the Executive has aggrandized his recess-appointment power through adverse possession.
Moreover, the majority’s insistence that the Senate gainsay an executive practice “as a body” in order to pre vent the Executive from acquiring power by adverse pos session, ante, at 14, will systematically favor the expansion of executive power at the expense of Congress.
It’s not often that property law (other than takings) intersects with constitutional law. So let’s consider the four (generally-accepted) elements of adverse possession (they vary depending on jurisdiction):
1. Open & Notorious – In this case, President Obama has openly and notoriously exercised his recess appointment power. He even held a press conference. This meets the first element.
2. Continuous – I think the continuous element helps Justice Breyer a lot. Though the practice was not done during the first 75 years, we do have a largely uninterrupted use of this power since World War II. So this element is satisfied.
3. Hostile – To characterize the relationship between Obama and Senate Republicans as “hostile” is probably an understatement. See Ted Cruz.
4. Under claim of right – The President has a plausible textual license to exercise this power, though 9 justices rejected it. This element is the weakest one.
So on the whole, President Obama probably would have acquired the power to recess appoints under the doctrine of adverse possession, if it applied to constitutional law. Which, thankfully it does not.
Though, I can imagine a defense to the adverse possession theory of law would be that something is “Unprecedented!” It can’t be continuous if it has never been done before!
Update: It seems Justice Scalia borrowed that zinger from a Jonathan Turley article, titled CONSTITUTIONAL ADVERSE POSSESSION: RECESS APPOINTMENTS AND THE ROLE OF HISTORICAL PRACTICE IN CONSTITUTIONAL INTERPRETATION.
The use of historical practice in the interpretation of the Clause ignores the purpose of the Clause specifically and the separation of powers generally in avoiding the concentration of power. It creates a type of constitutional adverse possession where the simple success of a president in usurping congressional territory is treated as proof of the validity of the underlying interpretation. Like the property doctrine, courts allow the acquisition of title to constitutional territory after “the claimant [demonstrates] exclusive possession that is open, notorious, continuous, and adverse” for a sufficiently long period.34 Of course, in this form of adverse possession, the original holder of the territory, Congress, has long contested the possession of the power in many of these cases.