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. […]
Author Archive | John Elwood
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 […]
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 […]
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 […]
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 […]
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. […]
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 […]
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, […]
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 […]
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 […]
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 […]
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; […]
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 […]
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, […]
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 […]