The unnecessariness of Noel Canning

When President Barack Obama filled a few vacancies on January 4, 2012, through a purported exercise of the recess appointments power, it reflected a few things.

Had he filled those vacancies just 24 hours earlier, between congressional sessions, they almost assuredly would never have faced a viable legal challenge. But if he'd done that, the interim appointment would have lasted just one year instead of two. So it reflected a deliberate choice--one of overreach.

Had the Senate not had a filibuster rule in place, one that required 60 votes to invoke cloture on a nominee, then the President's nominees likely would have been confirmed. Indeed, a few months after this event, the Senate deemed to amend its rules to require just 51 votes to invoke cloture in a number of situations. Presumably such a principle would have applied to his CFPB and NLRB nominees.

Had the President brokered a compromise, found acceptable nominees (indeed, contemporaneous reports suggested even some Democratic politicians balked at the nominees), or engaged in myriad political alternatives, in addition to the options listed above.

He chose none of them. Instead, he tried to get a two-year recess appointment from a few nominees. Litigation ensued. Now the opinion has come down in Noel Canning (PDF), analyzed elsewhere.

The entire case could have been avoided with any of the above steps--some quite modest--being taken. But they weren't.

And the holding in Noel Canning, in classic Breyerian form, adopts a narrow results that essentially preserves the status quo: perhaps the Constitution means certain things about when vacancies happen and the nature of what a recess is, but, instead, the better result is to undo this isolated act of executive aggrandizement and preserve things essentially as they've existed, in a kind of political inter-branch chess match, until the most recent dispute. (Indeed, given how the Senate has moved to hasten the ease of executive appointments by its cloture rules, it seems little might be left of such inter-branch disputes.)

This sturm und drang was wholly unnecessary--it was wholly avoidable. Which is perhaps why it was so easy for the Court to find unanimity in reaching its (narrow) result in this case.