Noel Canning and original intent

What do [did] the constitutional words really mean? NLRB v. Noel Canning is the pending US Supreme Court case that raises the question of whether the President's recess appointments to the NLRB complied with the constitution.

The constitution says, "The President shall have power to fill up all vacancies that may happen during the recess of the Senate."

In an earlier post I wrote: "As I read the NLRB’s brief in Noel Canning (filed September 13) I’m left with the feeling that the bulk of the brief deals with an explanation of why the words in the constitution do not mean what they say. [Read the brief]"

Many many briefs have been filed, by the parties and by amici on both sides.

I found the Brief of Originalist Scholars especially compelling. Originalists stress the importance of knowing what words and phrases meant at the time the constitution was drafted, rather than what those words and phrases might mean if they were written today.

The brief makes these main points:

  1. The vacancy must arise (“happen”), rather than simply be in existence, when the Senate is in recess.
  2. “The Recess” refers only to the break between legislative sessions, not to times when the Senate is having a break from legislative business.

Oral arguments are scheduled for January 13.

[For a list of current employment law cases, see Supreme Court Watch.]