Balkin on Noel Canning and Originalism

October 7th, 2014

In a fascinating post, Jack Balkin contends that in Noel Canning, it was Justice Breyer who was acting as the “originalist,” and Justice Scalia wrote a “revolutionary” opinion about the Living Constitution. For Breyer deferred to history and practice to uphold the intrasession recess appointments. But it was Scalia who rejected this tradition. Further, Jack explains that Scalia’s opinion wasn’t really about the history, but the political implications of the recess appointments.

Scalia’s opinion, by contrast, must be understood in the context of the new reality of party polarization and conflict extension. It responds to a changed political environment in which the opposition party finds that it disagrees with the President about almost everything in domestic politics. In this new world, movement conservatives have come to recognize the constitutional importance of checking domestic policymaking by presidents, especially liberal Democratic presidents like Barack Obama. Once political polarization becomes entrenched, constitutional values of checking and slowing down government regulation become especially important, especially to people whose constitutional values generally oppose government regulation. This theme occurs throughout Scalia’s dissent– he downplays the importance of efficient government to our constitutional system, arguing that separation of powers properly values liberty over efficiency. In this context, “liberty” means preventing presidents from creating new regulations or enforcing existing regulations through their control of administrative agencies.

The thread that holds together Jack’s entire post is that the original meaning of the Constitution does not place such checks on “presidential power in domestic policymaking.” If you accept that position (which I don’t), then Balkin’s opinion follows nicely. In this case, Scalia is rejecting all of this tradition, which is inconsistent with original practice.

But, if you contend that the original Constitution does not permit the intra-session recess appointments, then Jack’s theory doesn’t hold. I don’t agree that our original Constitution enables the President to have strong domestic policymaking power, where the Congress is at odds. As I discuss in my paper Gridlock and Executive Power, Scalia gets the better argument about how “gridlock” is a feature designed into our Constitution. The ability of a recalcitrant Congress to check a President whose appointments they don’t agree with is baked into the Constitution.

Scalia’s opinion evinces what Randy Barnett has described as the “gravitational force” of originalism–there is a gentle tug by the original Constitution to bring modern law in line with original meaning. Scalia is often influenced by that tug–and Noel Canning reflects that.

Now, Balkin counters that this history is merely convenient:

But that should hardly be surprising. Self-styled originalist arguments by legal officials and movement advocates– no matter how much they may present themselves as timeless truths–are often responses to perceived defects in current conditions.  That is because—although originalist academic theory may be separated from politics—originalism in practice is very often tied to reform projects in politics.

Perhaps this is true. Although, I think the question of what the original meaning of the recess appointment clause would, under a theory of originalism, trump practice.