At Josh Blackman's Blog, Josh Blackman: Balkin on Noel Canning and Originalism (criticizing this post by Jack Balkin, noted here). From the core of the argument:
The thread that holds together Jack’s entire post is that the original meaning of the Constitution does not place such checks on “presidential power in domestic policymaking.” If you accept that position (which I don’t), then Balkin’s opinion follows nicely. In this case, Scalia is rejecting all of this tradition, which is inconsistent with original practice.
But, if you contend that the original Constitution does not permit the intra-session recess appointments, then Jack’s theory doesn’t hold. I don’t agree that our original Constitution enables the President to have strong domestic policymaking power, where the Congress is at odds. As I discuss in my paper Gridlock and Executive Power, Scalia gets the better argument about how “gridlock” is a feature designed into our Constitution. The ability of a recalcitrant Congress to check a President whose appointments they don’t agree with is baked into the Constitution.
Posted at 6:26 AM