Noel Canning and the Definition of the Senate’s Recess
The Supreme Court will soon hear Noel Canning, and there is a great new paper from David Arkush analyzing the issues in the case. He and I are alone (I think) in arguing that the Court should defer to the Senate’s understanding of when it is in recess rather than creating a constitutional definition of the recess. Where we disagree is on the conclusion follows from this approach. I contend that the pro-forma sessions held by the Senate around the time President Obama made his nominations to the NLRB mean that the Senate was not in recess. Arkush argues the opposite, in part by looking at why the Senate decided to hold these sessions. Take a look and see what you think.