Magic Words

By Brennan-Marquez, Kiel | The William and Mary Bill of Rights Journal, March 2015 | Go to article overview

Magic Words


Brennan-Marquez, Kiel, The William and Mary Bill of Rights Journal


Introduction.................................................759

I. NFIB .....................................................762

II. Magic ....................................................765

III. False Magic...............................................771

IV. Evil Magic................................................776

Conclusion ..................................................783

Introduction

Midway through the oral argument in NLRB v. Noel Canning, it became clear that the government's position-authorizing the President to make recess appointments during pro forma sessions of the Senate* 1-hinged largely on a formality. A pro forma session qualifies as a "recess," Solicitor General Donald Verrilli, Jr., argued, as long as the Senate dispatches an order declaring that it shall conduct "no business."2 In Noel Canning, the dispatch of such an order was undisputed: so President Obama's recess appointments to the NLRB were constitutional.3

In response to Verrilli's argument, Chief Justice Roberts offered a simple but pointed hypothetical: "What if, instead of saying 'No business shall be conducted,' the order said, 'It is not anticipated that any business will be conducted. ' [Would] that suffice to eliminate that period as a recess?"4 A colloquy ensued:

GENERAL VERRILLI: I think that it's a-that's a different case and I think, concededly, a significantly harder case for the Executive because here-

CHIEF JUSTICE ROBERTS : Yeah. Well, it's difficult and harder, but it also suggests that you're just talking about a couple of magic words that the Senate can just change at the drop of a hat. So maybe the point is not that significant.

GENERAL VERRILLI: Well, I think it is significant, Mr. Chief Justice. It's a formal action by the Senate by rule saying that no business shall be conducted.5

No surprise that General Verrilli found "significanfce]" in the Senate's "formal action."6 Formality was the essence of the government's position. At the same time, Roberts ' s question captures a widespread intuition. Constitutional boundaries should not depend on how state actions are named. They should depend on what state actions actually consist of. Hence his pejorative use of the word "magic": to focus on labels rather than substance is to be taken in by an illusion.

This logic may sound familiar. In fact, it is the same logic that Chief Justice Roberts offered three terms ago, in NFIB v. Sebelius, to justify upholding the individual mandate of the Affordable Care Act (ACA).7 His argument? That in spite of Congress's decision to call the ACA's levy for non-compliance with the individual mandate a "penalty," the levy operated, in practice, as a tax.8 And for the purpose of deciding if the ACA was a legitimate exercise of Article I power, what mattered was how the levy worked, not how lawmakers happened to describe it.9 To hold the opposite, Roberts wrote, would make the meaning of Article I hinge on whether "Congress used the wrong labels."10 It would let "magic words . . . disable an otherwise constitutional [enactment]."* 11

Behind the political fireworks of NFIB, interpretive questions loom unresolved. What role do labels play in legal analysis? What role should they play?

Broadly speaking, this Article has two goals. The first is to demonstrate the prominence of functionalism in the interpretive practices of the Supreme Court. Reading a case like NFIB, it would be easy to conclude that the tension between labels and function reflects a deep rift in our legal order. On reflection, though, the rift turns out to be something of a mirage. While judicial opinions do occasionally employ the rhetoric of label-formalism, we are all functionalists at heart.

The Article's second goal is to explore two exceptions to this norm. One is a faux exception-an exception to functionalism that actually reinforces its primacy. The second is a genuine exception, though very possibly a lamentable one. …

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