Scalia v. Breyer and William Wirt

The Supreme Court issued its opinion today in National Labor Relations Board v. Noel Canning, a case primarily centered on (a) when recess appointments can be made by the President, and (b) whether or not the vacancy needed to occur before or after Senate went into recess.  Just as a refresher, Article II, Section 2 of the Constitution says that “the President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”  So, in an opinion of the sort that causes non-lawyers to hate lawyers, Justice Breyer discusses the meaning of the words “the” and “during”…over the course of 41 pages.

The good news though, is that this opinion cites a great deal of historical research.  In reading the opinion, I don’t think I’ve seen this much evidence of pure history footwork since Boumediene v. Bush (2006) or District of Columbia v. Heller (2008).  Somewhere, some history Ph.D.’s have earned their keep for the past few years by pawing through the nation’s archives for this case.

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