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 […]
Archive | Recess Appointments
Noel Canning Recess Appointments Case Fully Briefed And Ready for Decision
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 […]
Noel Canning Recess Appointments Case — Amici Weigh In
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, […]
Noel Canning Recess-Appointments Case: Battle Is Joined
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 […]
Further Thoughts on the Third Circuit’s Recess Appointment Decision
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 […]
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. […]
D.C. Circuit Voids NLRB Posting Rule
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 […]
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 […]
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. […]
ACS Panel on Nominations, Recess Appointments and the Filibuster
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 […]
No More Recess Appointments
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.
Judge Turns Away Challenge to Recess Appointees on NLRB
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 […]
Lawsuit Challenges NLRB Recess Appointments
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 […]