From an originalist perspective, NLRB v. Noel Canning was one of the worst separation of powers decisions in recent memory. The text of the Recess Appointments Clause clearly refers to "the recess of the Senate"–a single break between sessions. But Justice Breyer's majority opinion found that text "ambiguous," and then relied on historical practice–what we might now call "tradition"–to find that intrasession recess appointments were permissible. In short, many Presidents had made these types of appointments, and Congress had not meaningfully object to this practice, therefore the practice is constitutional.
Justice Scalia wrote a concurrence, which really read more like a dissent. He accused Justice Breyer of misreading the historical record, as intrasession recess appointments were the subject "of a long simmering interbranch conflict." But Scalia further criticized Breyer's methodology as akin to "adverse possession." That is, if the executive branch continuously exercises some power that it lacks, it can keep exercising that power.
As someone who teaches both Property and ConLaw, Scalia's argument about adverse possession has always resonated with me: if the government acts unlawfully for a long time, why should it be rewarded by being able to keep acting unlawfully? We tolerate squatter rights in the land use context, in part, to conclusively settle disputes and put property to the highest use. But the Constitution is not an abandoned lot or a fallow farm.
