On a January day in 2012, the U.S. Senate engaged in a series of pro forma sessions during their recess to thwart President Obama’s efforts to use his recess appointment power. Undeterred, Obama appointed members to the National Labor Relations Board (NLRB) and the Director of the Consumer Financial Protection Bureau during short intermissions. This led to the Supreme Court case NLRB v. Noel Canning, wherein nine justices unanimously found the appointments unconstitutional, but the ruling was anything but uniform.
Justice Antonin Scalia’s concurrence, in style and substance, read more like a dissent. His concurrence in “The Concurrence That Was Really a Dissent” critiques the majority’s decision for how it interpreted the recess appointments clause from a historical and textual standpoint. Scalia maintained a strict, textualist viewpoint, arguing that the Constitution’s language strictly prohibits filling vacancies with intra-session appointments unless they arise during the recess.
While the unanimous ruling curtailed the specific appointments in question, upholding that Obama’s appointments during a three-day recess were unconstitutional, the court diverged in its interpretation of the broader implications. Justice Stephen Breyer, on behalf of the majority, allowed for intra-session appointments given historical precedent and practical governance considerations, thus preserving some degree of presidential power to appoint during such periods.
Scalia, however, highlighted what he saw as judicial overreach, criticizing the majority for diluting constitutional clarity for historical practice that lacked consistent challenge. This difference in interpretation underscores the internal judicial tension between functionalism and textualism witnessed in the Supreme Court, revealing deeper divisions despite unanimous outcomes.