Supreme Court Review

Article Title

After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession


The Supreme Court’s decision last Term in NLRB v Noel Canning contains an especially strong and sustained endorsement of the relevance of historical practice to discerning the Constitution’s distribution of authority between Congress and the President. In interpreting the scope of the Recess Appointments Clause, the Court gave significant attention to how governmental actors had understood and applied the clause throughout history. The Court did so, moreover, as part of a self-conscious approach to constitutional interpretation. When construing “constitutional provisions regulating the relationship between Congress and the President,” the Court explained, “great weight” should be given to “‘[l]ong settled and established practice.’” In large part because of the practice, the Court concluded that the Recess Appointments Clause conferred broad recess appointments authority upon the President. The Court invalidated, however, the particular appointments at issue in the case, which in the Court’s view lacked historical support. The Court was unanimous as to the result, but four Justices concurred only in the judgment. Writing a de facto dissent for that group, Justice Scalia objected, first, to the way in which the majority had relied on historical practice. He accepted that “where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision.” In this case, however, Justice Scalia argued that the relevant text was clear, and that the historical practice relied upon by the majority neither dated to the early days of the Republic nor was uncontested. Justice Scalia also characterized the majority as applying “an adverse-possession theory of executive power,” which he feared would “have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers.”

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