Professor Tillman sends the following thoughts:
I expect one or more, if not all of the Supreme Court’s four liberal members to affirm the DC Circuit’s decision in Noel Canning. The primary issue in Noel Canning is not whether or not the Senate was in recess – but who or what institution gets to decide whether or not the Senate was in recess. Does the Senate make that call or do the President and the courts? In other words, once the Senate has flagged in the traditional way in its traditional records whether or not it is in session or in recess, does anyone (including the President) get to look beyond or behind the record created by the Senate. The President’s position is that the President and the courts are in a better position to make the call than the Senate.
The Origination Clause challenge to the PPACA, which is now making its way through the lower courts, poses a very similar (if not precisely the same) issue. The enrolled bill enacting the PPACA expressly records that the bill originated in the House, not the Senate. The plaintiffs in the Origination Clause case take the position that the courts should ignore the joint determination of the House and Senate in regard to house of origin, in spite of the fact that the relevant constitutional actors have made a final determination using their traditional records in the traditional way. Here too, plaintiffs say the courts could and should look behind the official House-Senate-created-and-verified record.
When is the Senate in recess?
When the Senate’s records state that the Senate was in recess.
When has a bill originated in the House?
When the enrolled bill enacting the statute records that the bill originated in the House.
After all, with the demise of the filibuster, the scope of the President’s recess appointment power matters much less. So if the Supreme Court wants to reverse Noel Canning, then “Go ahead, make my day.”
One Reply to “Seth Barrett Tillman on the Relationship Between the Origination Clause and Recess Appointment Clause Cases”
If “the relevant constitutional actors have made a final determination using their traditional records in the traditional way”, then no one may question the decision? Let’s assume so.
I think the President is a relevant constitutional actor with respect to nominations, and the Senate is not the only relevant constitutional actor in that regard. Likewise, with respect to the Origination Clause, I think that a plaintiff (who properly pleads standing, loss of property, and citizenship) is a relevant constitutional actor; no person may be deprived of property except by the process described by law.