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 Canning brief will make that  abundantly clear!

SECOND UPDATE:  Reuters reports that Noel Canning will agree that Supreme Court review is warranted.

Gary Lofland, the Seattle attorney representing Noel Canning, said they would encourage the court to take the case.

“We believe that it’s important that the court resolve this issue because it provides a better certainty to the business community,” Lofland said in an interview.

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