Author Archive | John Elwood

Divided Third Circuit Panel Invalidates NLRB Recess Appointment

The Third Circuit (Smith, Van Antwerpen, Greenaway (dissenting)) has invalidated an NLRB decision after concluding that one of the Board’s members had an invalid recess appointment.  The decision is available here.  Before you think about printing it out, be advised that the majority opinion is 102 pages long, and Judge Greenaway’s dissent runs another 55.  I’ll have more when I’ve had a chance to review the decision.

Readers of my posts on recess appointments should understand that Judge Smith’s position on recess appointments is contrary to what I’ve espoused in the past–although I’m in the process of reviewing recent originalist scholarship about the meaning of “session” and “recess” and we’ll see whether that changes my mind.  But because I had an argument before a panel of the Third Circuit yesterday that included Judge Smith, I’ve studied up on him, and I’m aware that his recent track record before the Supreme Court is pretty good.  See United States v. Stevens, 533 F.3d 218 (3d Cir. 2008) (en banc) (ban on depictions of animal cruelty), aff’d, 130 S. Ct. 1577 (2010); Bruesewitz v. Wyeth, Inc., 561 F.3d 233 (3d Cir. 2009) (preemptive effect of National Childhood Vaccine Injury Act), aff’d, 131 S. Ct. 1068 (2011); Greene v. Palakovich, 606 F.3d 85 (3d Cir. 2010) (meaning of “clearly established federal law” for habeas corpus claims under 28 U.S.C. § 2254(d)(1), aff’d, 132 S. Ct. 38 (2011). […]

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Recess Appointments Reading List

Almost a decade ago, the particular Recess Appointments Clause questions at issue in Noel Canning — whether “the Recess” can include intrasession Senate breaks, and whether the President can fill an office that became vacant before the Recess — were the subject of litigation challenging the recess appointment of William Pryor to the U.S. Court of Appeals for the Eleventh Circuit.  Marty Lederman and I were both involved in that litigation:  He was one of the counsel to Senator Kennedy in challenging the recess appointment of Judge Pryor, and I worked on the litigation in the SG’s Office.

In discussions between us about Noel Canning, we have compiled a helpful, albeit partial, list of sources  for those wishing to read up on these particular aspects of the Recess Appointments Clause.  They are set forth below in no particular order:

1.  AG Randolph Opinion (July 7, 1792)

2.   AG Wirt Opinion, 1 Op. Att’y Gen. 631 (1823);

3.  Treasury Solicitor O’Connell’s letter (1901) (three days before Knox!)

4.  AG Knox Opinion, 23 Op. Att’y Gen. 599 (1901);

5.  AG Daugherty Opinion, 33 Op. Att’y Gen. 20 (1921);

6.  1863 Senate Judiciary Committee Report

7. 1905 Senate Judiciary Committee Report (as reproduced in the Congressional Record)

8.  Ed Hartnett’s Recess Appointments of Article III Judges;

9.  Michael Rappaport’s The Original Meaning of the Recess Appointments Clause;

10.  Michael Herz’s Abandoning Recess Appointments?;

11.  Senator Mitchell’s 1993 statement on recess appointments and a draft amicus brief he wanted the Senate Legal Counsel to file.

12. The Eleventh Circuit’s decision in Evans v. Stephens

13. Senator Kennedy’s brief in Evans (Marty was counsel)

14. Senator Kennedy’s brief in Franklin v. United States (Marty was counsel)

15. The government’s brief in Miller v. United States (I was counsel) […]

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Quick Thoughts on Noel Canning Petition

As Jonathan notes, the government filed its cert. petition seeking review of the D.C. Circuit’s Noel Canning decision invalidating President Obama’s recess appointments to the National Labor Relations Board.

Many cert. petitions contain a relatively abbreviated discussion of the merits–just enough to leave the Court with the firm impression that the court below got it wrong, but saving detailed argument for merits briefing if the case is granted.

This petition, however, does set forth a  detailed argument, defending the appointments on originalist grounds and seeking to refute the D.C. Circuit’s conclusion that recess appointments can only be made during intersession recesses and only to fill vacancies that arose during the recess. It looks to me like it incorporates a fair amount of research into founding-era recess appointments that had not been undertaken even as recently as Edward Hartnett’s important 2005 article on the subject.  For example, the brief cites a couple of recess appointments by President Washington (Pet. 25 n.10) that it argues conflict with the view that the vacancy must arise during the recess of the Senate, neither of which Hartnett  mustered during his fairly detailed discussion of the first President’s practices (see pp. 384-387).

I look forward to reading Noel Canning’s response–this stuff is catnip for law nerds.  I wonder if they will file an opposition or simply acquiesce in Supreme Court review, given the circuit split, the number of cases out there, and the importance of the issue.

UPDATE: Let me add that I don’t mean to endorse any particular assertion or example in the government’s brief; I only wanted to note the extent of the research set forth within it and that some of it appeared new.  I am confident that if there are any weaknesses in the historical examples the government cites, the Noel […]

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Another Interesting Thing About the Kirtsaeng Lineup

In addition to Jon’s observation, another noteworthy thing about Kirtsaeng is that the case was decided 6-3. But wait–the whole reason the Court took Kirtsaeng was to resolve the question the Court couldn’t reach in Costco Wholesale Corp. v. Omega, S.A., because Justice Kagan was recused and the remaining Justices were divided 4-4.

So who switched his (or her) vote? I have my guess, but obviously it is only that.

H/T: Eric White, who beat me to it. […]

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NLRB Skips En Banc Review of Recess Appointments Case; Heads Straight for Supremes

No real surprise here: the NLRB is going to skip seeking en banc review of Canning v. NLRB and petition for cert.  There are scads of other cases now working their way through the courts of appeals and this is a way of resolving the issue once and for all.  The petition would be due April 25, 2013.

This is what the government did in the health care case–rather than seek rehearing in the 11th Circuit, it went straight to the Supreme Court. […]

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DC Circuit Strikes Down President Obama’s Recess Appointments

A panel of the DC Circuit (Sentelle, Henderson, Griffith) today held that President Obama’s recent recess appointments were invalid.

This is a very important and very broad holding–indeed, much broader than when it appeared that this case would be resolved on the President’s ability to make recess appointments when the Senate was conducting “pro forma” sessions.  It is also the most thorough judicial discussion of the recess appointment power.

The main thrust of the court’s opinion is that the recess appointment power extends only to intersession recesses–recesses between sessions of Congress–and not to intrasession recesses.  Intrasession recess appointments have been made fairly commonly since  WWII, and have been particularly common since the Reagan Administration.  UN Ambassador John Bolton and Judge William H. Pryor, Jr. are two of the more high-profile intrasession recess appointments in recent years.  The D.C. Circuit’s holding is is in acknowledged conflict with an Eleventh Circuit opinion from 2004.  Intrasession appointments may be even more common than intersession appointments these days (because the appointment runs to “the End of [Congress’s] next Session,” they last longer), so this is a very important ruling as a practical matter.

But the court also held (or at least stated) that the recess appointment power may only be used to fill vacancies that arise during the recess of the Senate.  The text of the Clause provides:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Although the first Attorney General, Edmund Randolph, read “happen” to limit the power to filling vacancies that arise during the recess of the Senate, by 1823, Attorney General William Wirt had reversed course and said it extended to vacancies that “happened […]

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Now THAT Is A Signing Statement!

Today the President issued a signing statement regarding H.R. 4310, the “National Defense Authorization Act for Fiscal Year 2013.”

I haven’t written much on President Obama’s constitutional signing statements recently (those suffering from insomnia, see here here,  here, here, here, and here for examples from 2009-2011), but today’s installment is such a classic of the genre that  I thought it warranted brief comment.

The signing statement is noteworthy in a few respects.  It runs 1,173 words, and by my count mentions 21 provisions, which is a goodly number.  That is pretty long as far as signing statements go, but it probably reflects in part the length of the bill he was signing.  Things with names like “National Defense Authorization Act” tend to be long, and this was no exception–the bill ran 680 pages.

The signing statement also explained in unusual detail why he signed a bill he obviously considers flawed:

Our Constitution does not afford the President the opportunity to approve or reject statutory sections one by one. I am empowered either to sign the bill, or reject it, as a whole. In this case, though I continue to oppose certain sections of the Act, the need to renew critical defense authorities and funding was too great to ignore.

He then goes category by category explaining his constitutional (and practical) concerns with various provisions.

The thing I found most noteworthy is that the statement makes what would be classified as a “unitary executive” objection–basically, the legislation interferes with the President’s ability to direct the exercise of discretion by officials within the Executive Branch.  But perhaps prudently, it avoids using that phrase, which tends to provoke a strong visceral reaction among some people:

Certain provisions in the Act threaten to interfere with my constitutional duty to


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The Incomparable Emily Spadoni

It is the end of an era in the Solicitor General’s office.  Earlier this year I emailed Emily Spadoni of the OSG staff and got an error message.  Because I had checked the address before sending, I knew it meant the worst: Emily had retired.  I knew it would have to happen sooner or later, but I had been dreading it.

Former Assistant to the Solicitor General Irv Gornstein has this fitting tribute to Emily at SCOTUSblog. It is spot on:

I never saw Emily’s job description, but an accurate one would have been simple to write: “Everything that needs to be done.” She processed everything that came into the Office, organized the Office’s massive number of files, kept track of all due dates, and ensured timely and accurate filings. Perhaps most important, she was the Office’s line of communication with the Supreme Court’s Clerk’s Office and with everyone else outside the SG’s Office. She selflessly performed all those tasks and more, and she did it with unrelenting dedication, an unparalleled sense of personal responsibility for the quality of the Office’s work, a deep reservoir of knowledge about the Office and the Court, and an unwavering commitment to getting things right.

The truth is, alumni of the SG’s Office know next to nothing about the mechanics of Supreme Court practice when they leave the Office, because the entire time they were there, Emily took care of everything for them.

One other noteworthy thing Irv said that I have to echo:

On behalf of everyone who has worked with you over the years, thank you Emily, and may you have a long and happy retirement.

What he said. […]

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If there were any doubt that this is another blockbuster Supreme Court Term . . .

. . . it just ended.  Today the Supreme Court granted cert in Shelby County v. Holder, 12-96, which will address the following question (as mildly reformulated by the Court):

Whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.

(The Fourteenth Amendment isn’t mentioned in the petition‘s version of the question presented; it’s otherwise identical.)

As regular readers of my other waste of electrons know, the Court relisted Shelby County twice before granting it today. A cynic would note that the relists had the effect of pushing the grant in this controversial case beyond the election, but I am not a cynic.  (And you can imagine that the Court might prefer not to be an issue in a political campaign regardless of which side it might benefit.)

Questions presented in the other three grants (including an important DNA testing case) after the jump.


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Supreme Court to Reconsider Role of Juries in Mandatory Minimum Sentencing

The Supreme Court just granted cert in Alleyne v. United States, 11-9335, which asks the Court to reconsider Harris v. United States.  There, Justice Kennedy (writing for a plurality), plus Justice Breyer (who concurred only in the judgment), held that facts that increased the mandatory minimum sentence need not be decided by the jury.

Two members of the Harris majority (Chief Justice Rehnquist and Justice O’Connor) have left the Court, as have  two  dissenters (Justices Stevens and Souter), so it will be interesting to see where their successors come out, and whether any of the Harris veterans have reconsidered their positions.  The Court has repeatedly passed up the opportunity to reconsider Almendarez-Torres v. United States (holding that the Sixth Amendment doesn’t require the fact of a prior conviction to be the subject of a jury determination), so it’s interesting the Court has decided to reconsider Harris. […]

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President Obama Blocks Chinese-Owned Wind-Farm Development

As anticipated in yesterday’s post, today President Obama acted on the pending CFIUS report regarding the Chinese-owned wind-farm developer (Ralls Corp.) and its  four wind-farm projects in Oregon.  The President’s order is noteworthy for being even broader than the two CFIUS orders it supersedes (which are described in my first post).

Such presidential orders are quite rare; a colleague of mine thinks this may be only the second or third such order since 1988.

The President first finds–without additional detail–that Ralls and its affliates and subsidiaries, through their control of the wind-farm projects, “might take action that threatens to impair the national security of the United States.”  The President does not specify how, but the Department of the Treasury issued a press release that provides one possibility, stating that “The wind farm sites are all within or in the vicinity of restricted air space at Naval Weapons Systems Training Facility Boardman.” (As noted here, Ralls relocated one project  at the Navy’s request to avoid that airspace, and Ralls’ lawsuit alleges that after it did so, the Navy recommended that Oregon regulators issue the necessary approvals–although they did emphasize that even the new location “may have negative national security implications”.)  In light of some of the order’s restrictions, I don’t think the proximity of the Naval base is a full explanation of the government’s concerns.

The President’s order then prohibits Ralls’ already-completed acquisition of the four projects and their assets and orders Ralls to divest them within 90 days (with a possible  three-month extension on such terms as CFIUS may require).  Ralls is even required to divest all interests in the projects’ “intellectual property[ and] technology.”  Ralls is given just 14 days to  remove “all items, structures, or other physical objects . . . (including concrete foundations),” from […]

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Update on Lawsuit Challenging CFIUS Action Blocking Chinese Wind-Farm Development

With my firm’s CFIUS experts, I put together a fuller analysis of the potentially significant CFIUS lawsuit I blogged earlier this month.  For those just tuning in now: the U.S. government’s Committee on Foreign Investment in the United States issued an order that blocked a Chinese-owned developer from proceeding with four wind-farm projects in Oregon; the developer sued, challenging not only the lack of transparency in CFIUS’s procedures and decision making, but also CFIUS’s authority to block  or unwind the transaction.

There have been a few noteworthy developments in the case.  First, just hours before the government was due to file its opposition to Ralls’ motion for a TRO, Ralls withdrew the motion after reaching an agreement with the government that allowed it to resume  preliminary construction at the wind-farm site while the suit is pending; the CFIUS order previously directed Ralls to “cease all [c]onstruction and [o]perations at the site.”  Although correlation does not imply causation, it suggests that the suit has improved Ralls’ position with respect to CFIUS.

Second, although correlation still does not imply causation, the day after the suit was filed, CFIUS sent a report to the President describing its assessment of the risks; by statute, once CFIUS sends such a report, the President has 15 days to  decide whether to take action (e.g., to block or mitigate the transaction).  The deadline runs tomorrow.

Because the  Foreign Investment and National Security Act of 2007 provides that the President’s actions and supporting findings “shall not be subject to judicial review,” there would be a question whether the President’s own actions (if any) would moot the lawsuit.  Ralls has a response (that the suit could continue under the “capable of repetition but evading review” exception to mootness doctrine. as CFIUS reviews each transaction in the first […]

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Your Name In Lights

Or in soybean-based ink.  George Will’s column today discusses the Elane Photography case that Eugene has been blogging (and participating in as amicus curiae). The case involves a First Amendment Free Exercise Clause/New Mexico Religious Freedom Restoration Act defense to penalties the New Mexico Human Rights Commission assessed against Christian photographers who refused for religious reasons to photograph a same-sex commitment ceremony. Will writes:

Eugene Volokh of the UCLA School of Law thinks that [photographer Elaine] Huguenin can also make a “compelled speech argument”: She cannot be coerced into creating expressive works, such as photographs, that express something she is uncomfortable expressing. Courts have repeatedly held that freedom of speech and the freedom not to speak are “complementary components of the broader concept of ‘individual freedom of mind.’ ”

Now here’s my favorite part, for purely selfish reasons. Will continues “New Mexico’s Supreme Court is going to sort all this out, which has been thoroughly reported and discused on the invaluable blog the Volokh Conspiracy . . . .” […]

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Landmark Foreign-Investment Suit Filed

If you deal regularly with the federal government, there are more candidates for the “most important government office that you’ve never heard of” than you can count.  My post tonight concerns not an office, but a federal interagency committee: the Committee on Foreign Investment in the United States, known by its acronym CFIUS, which is undeniably powerful, but sufficiently obscure that even the hardcore law nerds of the Volokh Conspiracy have mentioned it only once before.

On Wednesday, a Chinese-owned wind-farm developer sued CFIUS to seek review of recent CFIUS orders that effectively require the developer to unwind its purchase of four wind-farm projects in Oregon.  The suit is a rarity in a field that has seen virtually no efforts to obtain judicial review.  Even partial success by the plaintiff in obtaining review of CFIUS’s decision could have major implications for foreign direct investment in the United States and increase the transparency of a historically opaque government approval process.  More after the jump. […]

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What Were They Thinking — The Supreme Court in Revue, OT2011

The new phonebook’s here!  The new phonebook’s here!

As some of you know, I have sporadically done semi-humorous and often factual Supreme Court Term-end wrap-ups.  The fifth installment in this eminently deletable series is now available at the Green Bag.  This is the first I’ve done with a co-author, which may help explain why it’s being published before late September.

Because electrons are cheap, and because I know that for many, the void in your life is too big to be filled by a 5,000-word article, we are also making available online the “extended dance remix” version of the article, also known as the “unedited,” “bloated,” or “needlessly self-indulgent” version.  So here, for whatever meager enjoyment you might wring from them, are both versions: regular, and the Baconator.

Oh, and before I get tons of complaints about “Michael Phelps (2012),” that’s intended to be ironic.  His performance, like the opinion in FCC v. Fox, is safely characterized as “a big deal.” […]

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