A Fourth Way? Bringing Politics Back Into Recess Appointments (And the Rest of the Separation of Powers, Too)
Ron Krotoszynski has written a very interesting interpretation and defense of Justice Breyer’s majority opinion in Noel Canning. In Krotoszynski’s account, the opinion is a paragon of “pragmatic formalism,” a two-step process that navigates deftly between the Scylla of hidebound formalism and the Charybdis of unmoored functionalism. The pragmatic formalist, Krotoszynski explains, begins by applying formalist tools, pulled from the standard textualist toolbox. In some cases, those tools will suffice to get to a determinate answer; if so, the pragmatic formalist is done. But the pragmatic formalist also recognizes that, in many situations, formalist tools are underdeterminate; when one of those situations arises, he then turns to historical gloss and purposivist tools to guide the inquiry. In this way, Krotoszynski suggests, the pragmatic formalist avoids the pitfalls most commonly associated with straightforward formalism and straightforward functionalism: “Strict formalism presupposes that the text invariably offers clear answers, despite the fact that this is not always so. On the other hand, functionalism tends to undervalue the importance of the text when the Constitution does offer clear rules of the road.” Pragmatic formalism is, accordingly, that most precious of modern political devices: a “third way."
Josh Chafetz, A Fourth Way? Bringing Politics Back Into Recess Appointments (And the Rest of the Separation of Powers, Too), 64 Duke Law Journal Online 161-172 (2015)