The Myth of the Anti-Government Constitution

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http://www.theatlantic.com/politics/archive/2014/01/the-myth-of-the-anti-government-constitution/283005/



Last November, I got a preview of the oral argument for National Labor Relations Board v. Noel Canning, the case about recess appointments that the Supreme Court will hear Monday. Noel Francisco, the attorney who will represent the Noel Canning company in challenging those appointments, was my debate opponent at my local Federalist Society chapter. I’m an academic on the progressive end of the spectrum with expertise in separation of powers law; I’d been invited, as I sometimes am by conservative colleagues to represent that perspective with noted legal figures aligned with their point of view.

Francisco proved a powerful and congenial advocate. What intrigued me most was the clever narrative with which he framed his defense of the D.C. Circuit result. This narrative, I think, should be called the Myth of the Anti-Government Constitution.

The justices must decide whether Obama's three January 2012 appointments to the National Labor Relations Board properly fell within the president’s constitutional 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.” The D.C. Circuit overturned the Obama appointments for two reasons, both supposedly rooted in the original meaning of this constitutional clause.

First, according to the court, the text would have been understood in 1787 to authorize presidential appointments only during breaks between sessions of the Senate, not breaks during sessions of the Senate. The disputed Obama appointments occurred on January 4, 2012, a day after a session of the Senate had formally convened but during a hiatus of three or 20 days—the scope of the relevant break is itself a matter of legal dispute—when the Senate was adjourned.

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2. It is kind of an oxymoron, isn't it? The Constitution is against the government is constitutes?

What the Consitution is is democratic for the propertied, and we've been fighting to make it democratic for everyone ever since. And the propertied, fearing the government's power as a check on their own, are the ones who now fear the government.

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3. +1

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4. Nicely put.

I would only say that the propertied class has long feared the government. It is not a new thing.

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6. It's been a constant struggle here, that's for sure.

A hidden thread in US history.