Thoughts on Noel Canning

I was pleased with the Court’s decision last week, though that just means that it came out the way that I would have decided it.  Here are a couple of observations going forward:

1.  All Noel Canning does is clarify the bargaining terms between the parties.  The Senate can now block all recess appointments by holding pro forma sessions.  A motion to hold that sort of session, though, can be filibustered.  Moreover, any Senator can turn a pro forma session into a real one by just showing up and insisting on being recognized by the chair.  Thus, a normal majority in the Senate cannot block recess appointments without cutting deals with the other party and with the President.

2.  The House can prevent the Senate from taking a recess by objecting.  This will only happen, though, if Congress is divided in its party loyalties.  While this is true now, that alignment is pretty rare.  It did not happen at all between 1933-1980, for example, though it did happen from 1981-1986 & 2001-2002 before recurring in 2011.  Still, that’s 12 years out of the last eighty or so.

3.  Somebody should write that Article about the President’s adjournment power in cases where the two Houses cannot agree on a recess.  Since the President has never exercised this authority, originalism reigns supreme!

We’ll see what Hobby Lobby has to offer in the morning.

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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.