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Symposium: The Challengingly Uncategorizable Recess Appointments Clause, Michael Herz

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I fear that I am participating in this discussion under false pretenses, because I have no idea how the Court will decide National Labor Relations Board v. Noel Canning. And the reasons go far beyond the fact that this is a case of first impression or the possibility that the whole thing is a nonjusticiable political question. I am not going to review the substantive arguments for and against the D.C. Circuit’s ruling. Instead, I will touch on some other aspects of the recess appointments issue that make it a particularly hard one to guess about.