Former Senate Legal Counsel Proposes Moderate Way Forward on Recess Appointments

Michael Davidson has submitted his post-argument synopsis of the January 13 oral arguments before the U.S. Supreme Court in NLRB v. Noel Canning to the TCP Web Forum on the Recess Appointments Clause.

According to Davidson, a former U.S. Senate legal counsel, the January 13 oral argument “underscores the desirability of the Court finding a way to leave to the Executive and Legislative Branches the task of reconciling their views on the Recess Appointments Clause.” Davidson argues that the Recess Appointments Clause is not a “horse and buggy relic,” but rather an occasion to complete work in anticipation of a new beginning between Congresses. The intersession breaks are also part of a natural Executive cycle for temporarily filling vacancies. Davidson suggests that the Court should be mindful of the need to preserve the opportunity for intersession appointments.

Davidson also discusses the change in landscape since the Supreme Court granted certiorari on June 24, 2013. This change, according to Davidson, provided additional reasons for not drawing judicial lines that the political branches have long lived without.

The Constitution Project launched its first web forum series in August as an interactive forum for expert opinion and debate on the constitutional issues of our day. The “Paul Saunders Web Forum Series” is named for Paul Saunders, a member of TCP’s board of directors from 1999 to 2011, and its chair from 1999-2006.

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