Author Archive | John Elwood

Although most of the coverage of the Senate Rules change has concerned the immediate effect on the composition of the D.C. Circuit, it occurs to me that it is also relevant to NLRB v. Noel Canning.  Many recess appointments in recent years were of nominees who enjoyed majority support, but a Senate minority prevented a vote on their nominations.

Thus, if Noel Canning prevails in the Supreme Court in its challenge to President Obama’s recess appointment power, the effect on Executive Branch operations (and judicial operations, for that matter) will likely be less severe–at least until the Senate and the presidency are not in the hands of the same party.   In other words, the government’s “parade of horribles” just got a little less horrible (in the near term). [...]

Late this afternoon, a divided panel panel of the Fourth Circuit invalidated President Obama’s January 2012 recess appointment of three NLRB members. People who have remarked on the fact that only judges appointed by Republican presidents have so far voted to invalidate these appointments, while judges appointed by Democrats have voted to uphold them, will note that the same was also true here: the majority opinion was written by Senior Judge Clyde Hamilton (appointed by George H.W. Bush) and joined by Judge Allyson K. Duncan (appointed by George W. Bush); the opinion concurring in part and dissenting in (relevant) part was written by Judge Albert Diaz (appointed by Barack Obama).  (If you look back at my prior posts on this subject, you will see that I am not one of those people; but there are enough people who have noted it that I feel like I have to address  the issue.)  I think a more noteworthy pattern  is how the opinions on this subject are growing in length: the opinions in Noel Canning v. NLRB totalled a relatively brisk 47 pages; NLRB v. New Vista Nursing totalled 157 pages; NLRB v. Enterprise Leasing Co. Southeast weighs in at an awesome 167 pages.  (In fairness to the Fourth Circuit, their discussion of the constitutionality of recess appointments doesn’t even begin until page 56, after they’ve addressed other issues.)

The majority concluded that the President’s power under the Constitution to make recess appointments during “the Recess of the Senate” is limited to “intersession” recesses.  While the court said it “may not agree with the level of significance placed on ‘the’ by the court in Noel Canning, we agree that the use of the definite article suggests some ‘specificity.'”  Slip op. 92.  It agreed with (my recollection of) the Third Circuit’s opinion that [...]

NLRB v. Noel Canning, 12-1281, the case seeking Supreme Court review of the validity of President Obama’s 2012 recess appointments to the NLRB, is now on a glide path for a June Conference (setting up a decision whether to hear the case before the Justices go into recess).  Amici are now weighing in on whether, and on what terms, the Court ought to consider the case.

Amicus briefs supporting respondent are unusual at the cert. stage, because they tend to highlight the importance of a case and thus can be counterproductive to respondents trying to avoid Supreme Court review.  But there is nothing untoward about them where, as here, respondent affirmatively seeks cert.

Yesterday, Senate Republican Leader Mitch McConnell and 44 other Republican Senators (i.e., every Republican Senator) filed this brief supporting cert.  (This group participated in briefing and argument before the D.C. Circuit.)  Unsurprisingly, the brief focuses on the Senate’s constitutional role in appointments.  It supports Noel Canning’s effort (discussed here) to have the Court consider the additional question whether the President may make recess appointments even while the Senate is convening every three days in pro forma sessions.  It argues that the President lacks authority to second-guess the Senate’s determination that it remained in session, arguing that the Senate was available throughout to consider nominations by unanimous consent (as demonstrated by its passage of legislation during this time).

The brief also argues that cert. is “appropriate given the Executive’s ongoing defiance of the decision below and its inevitable at tempts to evade that ruling in the future,” noting that the NLRB “has publicly declared, with the Executive’s explicit blessing, that the decision below ‘applies to only one specific case’ and has no bearing on the Board’s ability to act in others.”  McConnell [...]

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 [...]

One of the frequently explanations for why the Supreme Court prefers to let circuit splits develop is that the Justices benefit from having the views of many court of appeals judges before addressing a subject themselves.  Today’s Third Circuit opinion in NLRB v. New Vista Nursing & Rehabilitation serves that role admirably, adding two new perspectives to the existing circuit split on the breadth of the President’s recess appointment power.

The majority opinion took a different tack than the D.C. Circuit in Noel Canning v. NLRB.  To begin with, it limited the scope of its decision to concluding that the Recess Appointments Clause applies only to recesses between Senate sessions (“intersession recesses”) and not recesses during those sessions (“intrasession recesses”), and did not take the additional step the D.C. Circuit did of addressing whether the vacancies so filled must arise during the recess of the Senate or whether the recess appointment power extends to vacancies that existed before the recess.

The majority’s reasoning also differed in significant respects.  The majority found Founding era dictionaries inconclusive, saying that “[t]he word ‘recess’ lacks a natural meaning that clearly identifies whether it includes only intersession breaks or also includes intrasession breaks.”  Slip op. 40.  The majority concluded that state constitutions during the Founding era suggested the term “recess” was limited to intersession recesses (I’m not sure I was persuaded, but I can be dim), id. at 46-48, but that executive practice during the same period (which it noted “should be viewed with some skepticism” because of institutional self-interest in applying powers expansively) was consistent with the term also applying to “long intrasession breaks.”  Id. at 50-52.  The majority therefore concluded that “[s]tanding alone, ‘Recess of the Senate’ is thus ambiguous.”  Id. at 54. [...]