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 Br. 14. Perhaps anticipating (I think correctly) that the Board’s treatment of the D.C. Circuit’s decision will not sit well with some of the Justices, the brief argues that the Board’s actions warrant prompt review (id. at 15):
[O]n these dubious grounds, the Board has pledged to “continue to . . . issue decisions” and take other actions that by law require a quorum, despite a federal court’s determination that it lacks authority to do so. True to its word, in just the two months since the court of appeals’ mandate issued, the Board has pressed on and issued more than forty published decisions (more than one hundred altogether). Until this Court rules definitively on the January 2012 appointments, the Board’s ultra vires operations undoubtedly will continue.
The Coalition for a Democratic Workplace last week filed this brief supporting cert. It, too, argues that the Court should consider whether the President was able to make recess appointments notwithstanding the Senate’s pro forma sessions. CDW contends that the government’s argument that pro forma sessions are functionally the same as a continuing recess is both “atextual” and “dangerously unworkable” in that it “would afford the President virtually unchecked authority to define the scope of his own recess-appointment power.” Like the McConnell brief, it argues that “the government’s argument fails on its own terms, because pro forma sessions are ‘real’ sessions in which the Senate can (and does) perform legislative functions.”
UPDATE: The Constitutional Accountability Center also filed this amicus brief yesterday supporting NLRB and defending the President’s exercise of the recess appointment power. The brief emphasizes that the Framers understood that the President, unlike the Senate, ”would remain continually in service” and would need subordinates to carry out the duties of the office. CAC Br. 9. Thus, it argues, the Founders provided for robust recess appointment authority that can be exercised whenever the Senate is as a practical matter unavailable to give advice and consent. It takes on the common textual and historical arguments for limiting the power to intersession recesses and argues that long executive practice (and period dictionaries) should shed light on whether the Clause should extend to vacancies that happen to arise or happen to exist during a recess.