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 pro-forma sessions” have, it should “add that question as part of any order granting certiorari” so that parties and amici are on notice” to address it, and the Court should “expand the word limits on the parties’ merits briefs, to enable them to deal with all three constitutional questions.”
The Court may well decide not to resolve this case on the pro forma sessions ground, even if it decides to invalidate the appointments. But it seems likely the Court would ask for briefing on the issue, both to give it the maximum flexibility to act (so it could, for example, resolve the case on a narrower ground than used by the D.C. Circuit) and to give it the fullest understanding of the issues. That’s exactly what the Court did in Zivotofsky v. Clinton, where it ordered briefing on an additional question that it didn’t ultimately reach.
The Court will consider the case at its June 20th Conference.
Since my last post on amicus briefs, I’ve gotten a copy of the amicus brief filed by Professor Victor Williams, which I discuss “below the fold.”
Professor Williams argues–as he has before the D.C. Circuit and the Third and Seventh Circuits–that the Recess Appointments Clause textually commits exclusive authority to the President, and that therefore Noel Canning’s “challenge to the President’s discretionary exercise of his recess appointment powers is a nonjusticiable political question.” He also argues that the Third Circuit’s rejection of his argument in its NLRB v. New Vista Nursing decision, discussed in my earlier post, creates a conflict with the Eleventh Circuit’s 2004 decision in Evans v. Stephens, which stated that the use of recess appointments to circumvent the Senate’s efforts to “block” nominees “presents a political question.” Williams agrees that cert. is warranted, but argues that the grant should include a “threshold nonjusticiability issue,” and contends that the Court should consider “summary reversal of the court of appeals.”