At Liberty Law Blog, John McGinnis: Noel Canning, Liberty, and the Coase Theorem. From the introduction:
Conservatives have been celebrating Noel Canning, the recent Supreme Court decision on recess appointments, because President Obama lost 9-0. But in reality the case was a loss both for liberty and the rule of law. While the result was unanimous, the reasoning in Justice Stephen Breyer’s five-person majority dramatically diverged from Justice Antonin Scalia’s four-person concurrence. And it is the reasoning, not the result, that may shape our constitutional future. Justice Breyer’s majority opinion elevates practices of the President and Congress over the original meaning of the Constitution. Adoption of Breyer’s principle of constitutional interpretation threatens our liberty.
Posted at 6:15 AM