Supreme Court

Scalia Attacks Obama (and Breyer) for 'Adverse-Possession Theory of Executive Authority' in Recess Appointments Case


Today's Supreme Court decision in National Labor Relations Board v. Noel Canning was a massive defeat for the Obama administration, which lost 9-0 on the question of whether Obama's three purported recess appointments to the NLRB were constitutional. The Court ruled those appointments invalid.

Credit: Wikimedia Commons

But the defeat could have been far worse. In his majority opinion, Justice Stephen Breyer ruled narrowly against the White House, criticizing the president and his allies for disrespecting the balance of power by claiming the Senate was in recess when the Senate was actually in session. Writing separately, however, Justice Antonin Scalia, joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, went much further than that. The Recess Appointments Clause, Scalia argued in his concurring opinion, "cabins" the president's power in two ways. "First, it may be exercised only in 'the Recess of the Senate,' that is, the intermission between two formal legislative sessions. Second," Scalia continued, "it may be used to fill only those vacancies that 'happen during the Recess,' that is, offices that become vacant during that intermission. Both conditions are clear from the Constitution's text and structure, and both were well understood at the founding."

Justice Breyer's majority opinion, by contrast, interpreted the Recess Appointments Clause as allowing both intra-session recess appointments and allowing the appointments of individuals who are filling vacancies that did not originally arise during "the recess" of the Senate. According to Breyer, moreover, Scalia's reading of the Constitution "would render illegitimate thousands of recess appointments reaching all the way back to the founding era."

In response, Scalia charged Breyer with rewriting the Constitution and engaging in a bout of "judicial adventurism." Here is a key portion of Scalia's concurrence:

Today's Court agrees that the appointments were inalid, but for the far narrower reason that they were made during a 3-day break in the Senate's session. On its way to that result, the majority sweeps away the key textual limitations on the recess-appointment power. It holds, first, that the President can make appointments without the Senate's participation even during short breaks in the middle of the Senate's session, and second, that those appointments can fill offices that became vacant long before the break in which they were filled.  The majority justifies those atextual results on an adverse-possession theory of executive authority: Presidents have long claimed the powers in question, and the Senate has not disputed those claims with sufficient vigor, so the Court should not "upset the compromises and working arrangements that the elected branches of Government them­
selves have reached."

In effect, the real debate in this case boiled down to whether historical practice or constitutional text should be the final controlling authority. Breyer, Kennedy, Ginsburg, Sotomayor, and Kagan went with historical practice. Scalia, Roberts, Thomas, and Alito went with constitutional text. Both sides agreed that Obama did not have a constitutional leg to stand on.

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  1. According to Breyer, moreover, Scalia’s reading of the Constitution “would render illegitimate thousands of recess appointments reaching all the way back to the founding era.”

    “We’ve always done it this way” trumps constitutional requirements?

    1. Yes. Breyer believes that history and congressional intent and the “spirit of the law” is what matters.

      That’s why he’s the one that wrote the opinion against Aereo, whereas Scalia ruled for Aereo.

      All the justices in that case believed that Aereo was taking advantage of a loophole that probably ought to be illegal, and that Congress probably would have made illegal if it had thought about it then.

      But Scalia said that “it is not the job of this Court to plug loopholes. It is the job of good lawyers to find and exploit them, and the job of Congress to fix them if it wishes.” Breyer believes the opposite.

      1. And this is why I think (specifically your usage with your intended meaning) of “living constitution” is a bit depraved. It lends credence to the term where none is due.

    2. “I know this const-i-tutional thing is kinda new, but we’ve always issued general warrents and done dragnet searches.” /ex-royalist

    3. “We’ve always done it this way” trumps constitutional requirements?

      It trumps doing things correctly where I work.

      1. When the question of some seemingly nonsensical process arises, I’ve found the best tactic to be to query those who say “We’ve always done it that way” about why it was done that way to begin with. In the cases where no one can remember, or the rationale no longer applies, letting them come to that conclusion, or at least have an inkling of doubt makes pressing for change easier than tackling it head on. Obfuscating stupidity comes in handy, though not everyone can effectively feign ignorance and let their opposite number try to ‘instruct’ them on why the process was used.

        In politics, however, the shouting match began long ago, and everyone has dug in their heels, so this approach only works at convincing individuals.

        1. “We’ve always done it that way” is just a way for morons to skate by without thinking anything through.

          1. Unfortunately, in most cases in most institutions, they get to keep on doing exactly that.

    4. So does Breyer object to the overturning of other 100s of cases done by dozens of previous Court decisions?

      Does Breyer object to the overturning of 1000s of rulings on marriage by 10s of 1000s of courts including the Supreme on marriage?

      SCOTUS overturned all kinds of precedent by permitting the specific forced purchase of a specific product by every single person (or his employer) in the country?

  2. If you are still experiencing problems commenting, as of 11:51 AM EDT or later on June 26, 2014, please let us know at

    1. yea right, superuser aka skwerl central. i email that and open up a com link inviting skwerl subversive attacks.

    2. So Don’t Feed The Trolls Thursday and Squirlz rebellion…got it.

      1. I



        1. I



          So, do you want us to fix that?

          1. NO



      2. Do you think the squirrels got big off of all the troll bait?

    3. Well played. I just hope it’s really Almanian posting this.

    4. It’s a trap!

  3. You know, this is shaping up to be a pretty good day between the SC and the stake in the heart of Bloomberg’s baby.

    Not as good as when Obama stamped his foot and pouted in the rose garden after gun control got smacked down, but definitely top ten material in the Obama era.

    1. “stake in the heart of Bloomberg’s baby”


      1. sorry, missed it. soda ban shot down.

      2. The soda ban thing

      3. Turns out his kid was a vampire. Good thing we got it in time.

  4. Breyer is the worst justice on the bench with the most asinine legal reasoning.

    He actually accused Scalia of wanting to render a century and a half of recess appointments illegitimate. Because a justice of the Supreme Court can’t be bothered to understand mootness.

    1. He’s a justice on the SC. He doesn’t have to understand anything he doesn’t want to.

      (Yeah, he’s fucking terrible.)

      1. If it were apathy, I could tolerate it better. Breyer is willfully ignorant.

      2. But he isn’t The Worst

        1. Yup, that title goes to Justice John Roberts.

          1. not what I was going for but ok.

      3. Just for Nicole

        AND a full stress test on commenting.

  5. I want to believe that a male can grow balls this late in their life, but I’m still very skeptical.

  6. testes… one… two…

    1. Your leperosy is in check?

  7. Only thing left to test

    Is quoting douchebags.

    SO, with Links, Multiples, Blod, Italics, and basic preview working I propose a cease fire on the squerlz.

    1. (braveheart yell) FREEEEEEEEEEEDOOOOOMMMMM!

    2. “In war the only sure defense is offense, and the efficiency of the offense depends on the warlike souls of those conducting it.”

    3. Would Custer cease fire on the sqwerlz?

      1. He had no choice – he was dead.

  8. Scalia got it right.

    Did they address the issue of whether those appointments were void ab initio and all actions taken by the NLRB since they were made were also void?

    1. Wouldn’t that be nigh impossible to untangle? Even if you don’t appoint a director, someone’s in charge. Unfortunately, the agency doesn’t sit idly.

      1. Wouldn’t that be nigh impossible to untangle?

        From a legal perspective? No. Quite easy, actually.

        Now, in various specific cases the illegitimate requirements may have taken root, but that’s operational, not legal.

    2. Hopefully those appointments will be finito.

  9. No, you guys don’t understand, the Republicans on the bench love Republicans and hate Dems and vice versa. 100% partisan and the scotus is always divided 5v4.

    It stands to the narrative

  10. So, will those appointees be removed?

    1. HAHAHAH nice joke.

      1. I ask this from the perspective of a military officer.

        I put it to you, that if he doesn’t remove the appointees after being ordered to by the SCOTUS, AND the SCOTUS having specifically said his actions were unconstitutional, it is the duty of the military to remove him from office.

        Commissioned Officer Oath Of Office

        “I, (state your name), having been appointed a (rank) in the United States (branch of service), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foriegn and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the office upon which I am about to enter. So help me God.”

        This IS and should be serious shit. When the government stops obeying the rules it exists under, we are talking Jeffersonian trees here.

        1. When the government stops obeying the rules it exists under

          That ship sailed a while ago.

          1. So the only thing to do is give up?

            1. I think someone posted a long time ago that you need 20 percent of the population actively revolting to be successful. I think we are a long way from 20 percent willing to drop their current lives and risk it all.

              1. I’m not talking about a revolt/overthrow. I’m talking about enforcing the Constitution.

                1. I’m not talking about a revolt/overthrow. I’m talking about enforcing the Constitution.

                  That’s so quaint.

                  1. At this point, enforcing the Constitution would be an overthrow of the current government.

                    1. At this point, enforcing the Constitution would be an overthrow of the current government.

                      Pretty much.

                  2. That’s so quaint.

                    Not sure if serious (sarcasmic).

                    If you don’t fight back (and I mean through legal means, letters demonstrations, petitions…) then you deserve everything you get.

                    Applicable cliche…freedom isn’t free.

                    1. I believe the positive and the future are less compelling than the negative and the immediate. The “people” wont do anything unless the later is the norm.

                      As for revolutions, the poor and starving may revolt but they lose. It is a common misconception that revolutions of the people are very successful. What IS successful is the rich and middle classes revolting. Look at the USA formation, the Communist revolution in Russia, The English revolution against Charles…all moneyed and middle class.

                      The poor are simply marketing tools and canon fodder.

                    2. If you don’t fight back (and I mean through legal means, letters demonstrations, petitions…)

                      I’m always on the fence about just how much impact these methods of “fighting back” are.

                    3. er, how much impact they have. Fucking need sleep, the 38th hour is rough.

                    4. I write a letter/email to my congressmen once a month. They ALL respond every time.

                      If letters don’t work, you kick it up a notch. Petition. Protest. Write the media.

                      You’re right, one person isn’t gonna make a difference, but 100k will. Silence is implied consent.

                2. Jeffersonian trees

                  Sorry. Didn’t mean to put words in your mouth. I assumed you meant revolt from the quote.

                  1. Sorry. I can see your point. Jeffersonian trees was more for effect.

                    A change of the governing system isn’t necessarily required to enforce the one in place. The Constitution is a damn good plan, when it’s actually adhered to.

                    1. A change of the governing system isn’t necessarily required to enforce the one in place.

                      I see this as “the right Top Men” argument reversed.

                    2. “the right Top Men” argument reversed.

                      Not sure what you mean.

                      Please splain.

                    3. The current Top Men aren’t enforcing the law; we need Better Top Men to enforce the law.

                    4. Enforcement is going to be done by men, Top or otherwise, isn’t it?

                      That military oath has always been the option of last resort for ensuring government obeys the Constitution.

              2. I think we are a long way from 20 percent willing to drop their current lives and risk it all.


              3. You’re thinking of T.E. Lawrence, and you’re off by an order of magnitude. From Seven pillars of Wisdom:

                “Rebellions can be made by 2% active in a striking force, and 98% passively sympathetic…. In 50 words: Granted mobility, security (in the form of denying targets to the enemy), time, and doctrine (the idea to convert every subject to friendliness), victory will rest with the insurgents, for the algebraical factors are in the end decisive, and against them perfections of means and spirit struggle quite in vain.”

    2. The NLRB has had a full set of regular appointees for a while; they’ve already been removed. The question has to do with a specific limited period of time.

  11. Are their decisions reversed? That was what Noel Canning was suing for, right?

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