Jul 1
1:32 PM

Prof. Rappaport Cited Heavily by Scalia

In National Labor Relations Board v. Noel Canning, No. 12-1281, slip op.  (S. Ct. June 26, 2014), the Court invalidated Pres. Obama’s three recess appointments to the NLRB. In their concurrence, at page 10 [of the concurrence] Justices Scalia, Thomas and Alito take exception to the majority’s understanding of the terms “recess” and “session” in the constitutional allocation of recess appointment power and examine an interpretation developed by USD law professor Michael Rappaport in his 2005 UCLA Law Review article , The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487, 1569 (also relied upon in the Brief of Constitutional Law Scholars as Amici Curiae for Respondent).

The concurrence notes that Rappaport suggests a colloquial interpretation “that the recess-appointment power would be activated during any temporary suspension of Senate proceedings, but appointments made pursuant to that power would last only until the beginning of the next suspension (which would end the next colloquial session).” While Scalia finds this approach more “linguistically defensible” than that of the majority opinion, it still  “leaves the recess-appointment power without a textually grounded principle limiting the time of its exercise.” In his ensuing lengthy discussion of this point, Scalia refers to Prof. Rappaport’s article three more times and also cites a manuscript of another paper by Prof Rappaport, Why Nonoriginalism Does Not Justify Departing from the Original Meaning of the Recess Appointments Clause .

Recognition of scholarly work by Supreme Court justices is reserved for a relatively elite echelon of law professors, and USD is well represented by Prof. Rappaport in this group.



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