Thoughts on Noel Canning

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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4 Responses

  1. mls says:

    But you wouldn’t have held that the Senate can be in session and recess at the same time, would you? Because that’s deeply wrong.

  2. Brett Bellmore says:

    Ok, you’re really going to have to explain how one Senator bringing the Senate into session deprives a majority of the power to block recess appointment. ‘Cause I just don’t see it; pro forma, trgular, neither is a recess.

  3. Gerard Magliocca says:


    Let’s say the majority schedules pro forma sessions. At the first one, a minority Senator gets up and start making motions. He can keep the Senate in session and force the representative of the majority to stay there by objecting to an adjournment. This turns the pro forma session into a real one, for if the majority representative is not there, then the minority guy can pass things by unanimous consent. This is easy to prevent, but the point is that Senators don’t want to be in Washington during August or Xmas. Plus, you can easily imagine somebody doing this as a surprise tactic (at least the first time).

  4. Joe says:

    I okay with the ruling since if my ideal decision didn’t arise (since the multiple sides here have a reasonable interpretation, it should be left to the political process especially given we are not dealing with some individual or Carolene Products FN4 sort of thing, but two competing political institutions), it is a relatively sane approach. I also don’t think it “deeply wrong” to consider that for purposes of the recess clause some “pro forma” session is simply not enough, one possibly in session for some limited purposes but not for others. At least, I don’t think it “deeply wrong” to think that.