“Some Scholars Say” And Other Fearmongering Silliness

This story from the Washington Times bugs me because it has already been debunked multiple times and yet it continues to get reported.

And this latest iteration contains this gem:

Justice Stephen G. Breyer, writing the controlling opinion in that 2014 case, acknowledged Roosevelt’s move, though he called it an anomaly.
He said there’s a general presumption that recesses need to be at least 10 days for a president to flex his recess powers, though he left open the chance for an emergency.

Some scholars say the 10-day rule in his opinion is “dicta,” or nonbinding verbiage that doesn’t constrain the courts. Activists suggest Judge Garland could test the boundaries of unusual circumstances that Justice Breyer left open.

Dicta are persuasive, but non-binding statements in a judicial opinion, but are not part of a court’s rationale in the overarching decision. That leads us to NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), to which the quote above refers.

In that case, Barack Obama made a recess appointment to the National Labor Relations Board. There were three questions presented to the Court.

The first concerns the scope of the words “recess of the Senate.” Does that phrase refer only to an inter-session recess (i.e., a break between formal sessions of Congress), or does it also include an intra-session recess, such as a summer recess in the midst of a session?

Noel Canning at 2556

The second question concerns the scope of the words “vacancies that may happen.” Does that phrase refer only to vacancies that first come into existence during a recess, or does it also include vacancies that arise prior to a recess but continue to exist during the recess?


The third question concerns calculation of the length of a “recess.”… In calculating the length of a recess are we to ignore the pro forma sessions, thereby treating the series of brief recesses as a single, month-long recess?

Id. at 2557.

Here’s what “some scholars say” is dicta.

We therefore conclude, in light of historical practice, that a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause. We add the word “presumptively” to leave open the possibility that some very unusual circumstance — a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response — could demand the exercise of the recess-appointment power during a shorter break. (It should go without saying — except that Justice SCALIA compels us to say it — that political opposition in the Senate would not qualify as an unusual circumstance.)

In sum, we conclude that the phrase “the recess” applies to both intra-session and inter-session recesses. If a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, § 5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well.

Noel Canning at 2567.

Listen, some scholars say the grass is purple and the sky is green. Anybody can find a scholar to say whatever you want. But no credible scholar is going to look at a Supreme Court opinion, see the words “we therefore conclude” and think what comes after it is non-binding dicta.

Conservatives and conservative media outlets like the Washington Times, which are pushing back on “fake news” claims, should stop pushing out b.s. stories citing anonymous scholars.

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Erick Erickson

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