Noel Canning Recess-Appointments Case: Battle Is Joined

Respondent in NLRB v. Noel Canning, 12-1281, the case seeking review of the D.C. Circuit’s judgment invalidating the President’s recess appointments of several NLRB members, has filed its brief respecting certiorari–five days early, no less, probably to ensure the Court has time to consider the case before leaving for summer recess.  As anticipated, respondent does not oppose certiorari, noting  the case “presents a constitutional question of extreme importance” (Noel Canning Br. 9) that warrants Supreme Court review.  That position is not a surprise: The Noel Canning case was brought by the U.S. Chamber of Commerce, which has an interest in not simply preserving its victory in the D.C. Circuit, but in achieving definitive nationwide resolution.

Noel Canning proposes that in addition to the two questions presented by the government’s petition, to wit:

1. Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate.
2. Whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during the recess.

the Court should consider a third question, which the D.C. Circuit did not reach because it invalidated the appointments on other grounds:

3. Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.

Noel Canning argues that addressing only the questions posed by the government “could potentially leave the validity of the ‘recess’ appointments at issue unresolved.”  Noel Canning Br. 9.

It will be interesting to see what the Government says in its reply brief (which we’ll be seeing no later than June 4) about the proposed third question. The Court frequently says it is a “court of review, not of first view,” and the government may argue that question should be left for the D.C. Circuit on remand; but then again, given how much litigation the NLRB recess appointments have spawned, it may be happy to have the Court resolve the validity of the appointments once and for all.

The Noel Canning brief doesn’t address the existence of a circuit split or that this case presents an adequate vehicle for resolving the issue.  Instead, it basically focuses on the merits, giving a preview of its merits brief.  Within the strictures of the relatively low word count of cert.-stage filings, it sets forth a full-throated originalist rejoinder to the arguments in the petition.

In an earlier post, I noted some of the new research set forth in the petition, particularly on President Washington’s use of the recess appointment power to suggest he believed he could make appointments to fill positions that had become vacant while the Senate was in session.  I’ve had a couple of academics email me questioning the validity of the SG’s  historical assertions and indicating their own research suggests the positions referenced actually became vacant during the recess of the Senate.  (I haven’t had time to run those arguments to ground yet, but hope to.)  Perhaps because of space constraints, perhaps to keep its powder dry, the Noel Canning brief instead looks to evidence indicating that, whatever the actual facts, President Washington believed the offices became vacant during the recess of the Senate: in notifying the Senate of the appointments, he indicated that the offices had “fallen vacant during the recess of the Senate.”

Battle is joined.  If the government files its reply brief by June 4, this case will be considered at the June 20th Conference, the last scheduled Conference before the summer recess (although the Court routinely holds an unscheduled “mop up” Conference after that one).  If OSG rushes a bit and files by May 28, it will be considered at the June 13th Conference.