To no one’s great surprise, the Court agreed to take the NLRB v. Noel Canning recess appointments case. As I predicted, the Court added a third question, in addition to the inter/intrasession question and the happens to arise/happens to exist question: “Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.” Noel Canning/the Chamber of Commerce and amici Republican Senators had recommended that; the SG had recommended against it. So all the major questions are squarely teed up! I haven’t checked again recently, but I suspect this would be a January argument.
Yesterday, the government filed its cert. stage reply brief in NLRB v. Noel Canning, 12-1281, the case seeking review of the D.C. Circuit’s decision invalidating President Obama’s 2012 recess appointments to the NLRB. The challenge to the appointments was brought by the U.S. Chamber of Commerce’s National Chamber Litigation Center.
The cert papers were distributed to Chambers on June 4. Ordinarily, the petitioner would like to have its reply brief filed by that point so that the cert. pool memo writer never has any time with the respondent’s brief in opposition without having the petitioner’s reply at hand. But because this is no ordinary case, I guess the SG felt he could stand to get the reply brief in a couple days late. As the SG notes on page 1 of the reply,
All of the parties to this case–and all of the amici curiae–agree that this Court should grant certiorari to review th[e D.C. Circuit’s] decision.
After disputing some of Noel Canning’s merits arguments, the SG argues that the Court shouldn’t take the additional question proposed by respondent, regarding the effect of pro forma sessions on the President’s ability to make recess appointments. The SG argues it should not because (as I mused in an earlier post), the Supreme Court is a “court of review, not of first view,” and disposing of this case on that ground would leave in place the circuit splits on the questions reached by the D.C. Circuit about intrasession/intersession appointments and when the vacancy must “happen.” It shouldn’t add that issue, the SG says, unless at a minimum some lower court addresses it first, presumably while this case is pending before the Supreme Court.
But if the Court is “inclined to use this case to decide what effect [...]
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. [...]
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). [...]
This morning, a unanimous panel of the U.S. Court of Appeals for the D.C. Circuit, in National Association of Manufacturers v. National Labor Relations Board, struck down a new NLRB regulation requiring employers to post a notice of employee rights under the National Labor Relations Act on their properties and websites. Judge Randoph wrote the opinion for the court finding that the various means of enforcing the rule violated various provisions of the NLRA. Among other things, Judge Randolph concluded that if Section 8(c) of the NLRA prohibits the Board from finding an employer guilty of an unfair labor practice for posting a notice informing workers of their right not to join a union, it cannot be an unfair labor practice for an employer to refuse to post a notice informing workers of their right to unionize. Judge Henderson also wrote a concurring opinion, joined by Judge Brown, articulating additional reasons to find the rule invalid.
Of note, the court did not rely upon its previous decision invalidating President Obama’s recess appointments to the Board. This was at issue because the publication date of the rule in the Federal Register occurred after the expiration of Wilma Leibman’s term, at which point the Board was left with only two Senate-confirmed members. This did not matter, Judge Randolph explained, because the Board actually promulgated the rule before Leibman’s term expired and thus before the NLRB lost its quorum. While the date of Federal Register publication matters for determining when petitioners must challenge agency rules — it is such publication that puts regulated parties on notice — once an agency has actually finalized and filed its rule with the Office of the Federal Register, the agency’s action is complete. Thus the Board had a quorum when it acted to promulgate the rule, [...]
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)
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 [...]
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. [...]
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 [...]
On Saturday morning I also attended an ACS panel on “Congressional Gridlock in the Executive: A Battle Over Nominations, Recess Appointments, and the Use of the Filibuster,” featuring law professors Michael Gerhardt and Michael McConnell, Louis Fisher of the Congressional Research Service, Marge Baker of the People for the American Way and moderated by Professor Neil Kinkopf. As with yesterday’s post, my summary (and some comments) are below the jump. [...]
The Hill reports that Senate Majority Leader Harry Reid has promised Senate Minority Leader Mitch McConnell that there will be no more recess appointments made by the President during Congress’ next adjournment. [...]
Last Friday, a federal judge turned away a challenge to President Obama’s recess appointment of three members to the National Labor Relations Board. As Lyle Denniston reports on SCOTUSBlog, Judge Amy Berman Jackson refused to consider the claim in the context of a challenge to a recent NLRB rule requiring employers to provide certain information to employees. “Several plaintiffs have attempted to shoehorn a challenge to the President’s recent recess appointments into a pending APA case about the validity of a rule issued by the National Labor Relations Board,” Judge Jackson wrote in her opinion. “But the rule was promulgated by a quorum of undisputedly duly authorized members well before the recess appointments were announced, and it is set to go into effect automatically on April 30, 2012.” As a consequence, she explained the court “declines this invitation to take up a political dispute that is not before it.” The industry groups fared somewhat better in their challenge to the substance of the new NLRB rule.
Business groups have already begun to take aim at President Obama’s recess appointments. As SCOTUSBlog reports, a coalition of industry groups filed a motion (and supplementary memorandum) to include a challenge to the constitutionality of President Obama’s recess appointments to the National Labor Relations Board in ongoing litigation against recently adopted “notice posting” rule. According to the industry groups, the NLRB lacks the authority to implement and enforce the new rule because it lacks a quorum due to the unconstitutionality of the recent appointments. [...]