Selective Functionalism in NLRB v. Noel Canning

by Ed Whelan

In his majority opinion in yesterday’s recess-appointment ruling, Justice Breyer purports to adopt a general “functional” approach to the Recess Appointment Clause, as opposed to what he derides as the “formalistic” approach that Justice Scalia takes in his opinion concurring in the judgment. Such wordplay is, of course, a routine means by which living constitutionalists seek to camouflage their escape from the unwelcome confines of textualism.

What I would like to highlight is how opportunistic Breyer is in his supposed functionalism. When it comes to the question whether the Senate’s pro forma sessions must be treated as periods of recess, a functionalist, I would have thought, would have readily dismissed pro forma sessions as meaningless. Indeed, the very term pro forma suggests that it would be formalistic to count them as real.

Breyer adopts the rule that “the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.” The primary part of the rule—“the Senate is in session when it says it is”—is certainly not functionalist. Further, while the proviso sounds functionalist, Breyer, in applying it, suddenly and selectively becomes a rigid formalist.

For example, in addressing whether the Senate chamber was empty during pro forma sessions, Breyer doesn’t entertain factual evidence but instead relies on the (frequently counterfactual) “presumption” under the Senate rules that “a quorum [i.e., a majority of the the Senate] is present until a present Senator suggests the absence of a quorum.” So by Breyer’s deliberately blinkered vision, there were 51 senators present during the entirety of the pro forma sessions.

More broadly, Breyer rejects the Solicitor General’s request that the Court “engage in a more realistic appraisal of what the Senate actually did.” That kind of “factual appraisal,” Breyer maintains, is not “legally or practically appropriate.” I think that he’s right as to legal inappropriateness—but I don’t see how his rejection of functionalism and pragmatism here is consistent with his broader embrace of it in the remainder of his opinion.

In sum, Breyer’s approach isn’t principled or consistent. As usual, he will do whatever it takes to get to the result that happens to make sense to him.

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