The Volokh Conspiracy

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.
Continue reading ‘Further Thoughts on the Third Circuit’s Recess Appointment Decision’ »

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).

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) [registration required]

2.   AG Wirt Opinion, 1 Op. Att’y Gen. 631 (1823);

3.  AG Knox Opinion, 23 Op. Att’y Gen. 599 (1901);

4.  AG Daugherty Opinion, 33 Op. Att’y Gen. 20 (1921);

5.  CTA11 decision in Evans v. Stephens;

6.  Sen. Kennedy’s brief in Evans [Marty was one of Sen. Kennedy's counsel];

7.  Sen. Kennedy’s brief in Franklin;

8.  OSG Brief in Franklin [I was the line Assistant on the case];

9.  Ed Hartnett’s Recess Appointments of Article III Judges;

10.  Michael Rappaport’s The Original Meaning of the Recess Appointments Clause;

11.  Michael Herz’s Abandoning Recess Appointments?;

12.  OSG Petition in Noel Canning;

13.  Noel Canning’s brief in Noel Canning [forthcoming].

14.  Senator Mitchell’s 1993 statement on recess appointments and a draft amicus brief he wanted the Senate Legal Counsel to file.

15.  What the hey–a Congressional Research Service overview.

And here is a very comprehensive guide to AG opinions on the subject, which includes several links.

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 Canning brief will make that  abundantly clear!

SECOND UPDATE:  Reuters reports that Noel Canning will agree that Supreme Court review is warranted.

Gary Lofland, the Seattle attorney representing Noel Canning, said they would encourage the court to take the case.

“We believe that it’s important that the court resolve this issue because it provides a better certainty to the business community,” Lofland said in an interview.

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 switched his (or her) vote? I have my guess, but obviously it is only that.

H/T: Eric White, who beat me to it.

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 to exist” during the recess.  And there it has remained ever since.  The D.C. Circuit’s conclusion conflicts with the Eleventh Circuit, the en banc Ninth Circuit, and the Second Circuit on this score.

Both these points were not the main focus of the briefing, so I could see the government seeking rehearing en banc; but if the government feels it must act quickly because of the number of NLRB decisions that are at risk, it could head directly to the Supreme Court–possibly even seeking expedited briefing so the case could be considered this Term.

I do think the panel would have benefited from extensive briefing specifically on these questions.  For example, the court heavily emphasized that  ”[t]he dearth of intrasession appointments in the years and decades following the ratification.”  But as noted in the Government’s brief in opposition in Franklin v. United States  (which I drafted), arising out of the Pryor recess appointment, “Before 1857, Presidents had virtually no occasion to make such [intrasession] appointments.  During that period, Congress scheduled only three brief intra-session recesses, for periods of seven, five, and five days, over the winter holidays of 1800, 1817, and 1828, respectively.”

The D.C. Circuit opinion is an excellent recitation of the arguments against the validity of intrasession recess appointments.  For more argumentation along those lines, see this 2005 post by Marty Lederman, and briefs he filed (along with Tom Goldstein and Laurence Tribe) challenging the Pryor appointment, here and here.  Arguments for the validity of intrasession recess appointments, also in the context of the Pryor appointment (and drafted by yours truly) can be found here and here.

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 it warranted brief comment.

The signing statement is noteworthy in a few respects.  It runs 1,173 words, and by my count mentions 21 provisions, which is a goodly number.  That is pretty long as far as signing statements go, but it probably reflects in part the length of the bill he was signing.  Things with names like “National Defense Authorization Act” tend to be long, and this was no exception–the bill ran 680 pages.

The signing statement also explained in unusual detail why he signed a bill he obviously considers flawed:

Our Constitution does not afford the President the opportunity to approve or reject statutory sections one by one. I am empowered either to sign the bill, or reject it, as a whole. In this case, though I continue to oppose certain sections of the Act, the need to renew critical defense authorities and funding was too great to ignore.

He then goes category by category explaining his constitutional (and practical) concerns with various provisions.

The thing I found most noteworthy is that the statement makes what would be classified as a “unitary executive” objection–basically, the legislation interferes with the President’s ability to direct the exercise of discretion by officials within the Executive Branch.  But perhaps prudently, it avoids using that phrase, which tends to provoke a strong visceral reaction among some people:

Certain provisions in the Act threaten to interfere with my constitutional duty to supervise the executive branch. Specifically, sections 827, 828, and 3164 could be interpreted in a manner that would interfere with my authority to manage and direct executive branch officials. As my Administration previously informed the Congress, I will interpret those sections consistent with my authority to direct the heads of executive departments to supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential. Additionally, section 1034 would require a subordinate to submit materials directly to the Congress without change, and thereby obstructs the traditional chain of command. I will implement this provision in a manner consistent with my authority as the Commander in Chief of the Armed Forces and the head of the executive branch.

This is more developed than his last “unitary executive” objection (“The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority.”), which can be found here.

The entire signing statement can be found here.  For a fuller (and, I think, generally sensible) discussion of the use of presidential signing statements, see here.

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, but I had been dreading it.

Former Assistant to the Solicitor General Irv Gornstein has this fitting tribute to Emily at SCOTUSblog. It is spot on:

I never saw Emily’s job description, but an accurate one would have been simple to write: “Everything that needs to be done.” She processed everything that came into the Office, organized the Office’s massive number of files, kept track of all due dates, and ensured timely and accurate filings. Perhaps most important, she was the Office’s line of communication with the Supreme Court’s Clerk’s Office and with everyone else outside the SG’s Office. She selflessly performed all those tasks and more, and she did it with unrelenting dedication, an unparalleled sense of personal responsibility for the quality of the Office’s work, a deep reservoir of knowledge about the Office and the Court, and an unwavering commitment to getting things right.

The truth is, alumni of the SG’s Office know next to nothing about the mechanics of Supreme Court practice when they leave the Office, because the entire time they were there, Emily took care of everything for them.

One other noteworthy thing Irv said that I have to echo:

On behalf of everyone who has worked with you over the years, thank you Emily, and may you have a long and happy retirement.

What he said.

. . . 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 its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.

(The Fourteenth Amendment isn’t mentioned in the petition‘s version of the question presented; it’s otherwise identical.)

As regular readers of my other waste of electrons know, the Court relisted Shelby County twice before granting it today. A cynic would note that the relists had the effect of pushing the grant in this controversial case beyond the election, but I am not a cynic.  (And you can imagine that the Court might prefer not to be an issue in a political campaign regardless of which side it might benefit.)

Questions presented in the other three grants (including an important DNA testing case) after the jump.

Continue reading ‘If there were any doubt that this is another blockbuster Supreme Court Term . . .’ »

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 of the Harris majority (Chief Justice Rehnquist and Justice O’Connor) have left the Court, as have  two  dissenters (Justices Stevens and Souter), so it will be interesting to see where their successors come out, and whether any of the Harris veterans have reconsidered their positions.  The Court has repeatedly passed up the opportunity to reconsider Almendarez-Torres v. United States (holding that the Sixth Amendment doesn’t require the fact of a prior conviction to be the subject of a jury determination), so it’s interesting the Court has decided to reconsider Harris.

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 rare; a colleague of mine thinks this may be only the second or third such order since 1988.

The President first finds–without additional detail–that Ralls and its affliates and subsidiaries, through their control of the wind-farm projects, “might take action that threatens to impair the national security of the United States.”  The President does not specify how, but the Department of the Treasury issued a press release that provides one possibility, stating that “The wind farm sites are all within or in the vicinity of restricted air space at Naval Weapons Systems Training Facility Boardman.” (As noted here, Ralls relocated one project  at the Navy’s request to avoid that airspace, and Ralls’ lawsuit alleges that after it did so, the Navy recommended that Oregon regulators issue the necessary approvals–although they did emphasize that even the new location “may have negative national security implications”.)  In light of some of the order’s restrictions, I don’t think the proximity of the Naval base is a full explanation of the government’s concerns.

The President’s order then prohibits Ralls’ already-completed acquisition of the four projects and their assets and orders Ralls to divest them within 90 days (with a possible  three-month extension on such terms as CFIUS may require).  Ralls is even required to divest all interests in the projects’ “intellectual property[ and] technology.”  Ralls is given just 14 days to  remove “all items, structures, or other physical objects . . . (including concrete foundations),” from the four sites, and aside from CFIUS-cleared U.S.-citizen contractors removing those items, Ralls and its employees “shall cease all access” to them.  Ralls cannot sell the four projects if CFIUS objects.

One of the most noteworthy aspects of the President’s order that is lacking from CFIUS’s orders is its authorization of inspections.  ”[O]n reasonable notice,” government employees “shall be permitted access, for purposes of verifying compliance with this order, to all premises and facilities” of the four project companies, as well as those Ralls, its subsidiaries, and even those of Sany Group–the very large Chinese manufacturer that is affiliated with Ralls (two Sany executives own Ralls):

(i) to inspect and copy any books, ledgers, accounts, correspondence, memoranda, and other records and documents . . . that concern any matter relating to this order;

(ii) to inspect any equipment and technical data (including software) in the possession or under the control of the Companies . . . .

Perhaps significantly, the inspection of equipment and technical data is not limited to those “that concern any matter relating to this order”– although it would appear to be subject to the general provision that the inspections would be “for purposes of verifying compliance with this order.”

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; the developer sued, challenging not only the lack of transparency in CFIUS’s procedures and decision making, but also CFIUS’s authority to block  or unwind the transaction.

There have been a few noteworthy developments in the case.  First, just hours before the government was due to file its opposition to Ralls’ motion for a TRO, Ralls withdrew the motion after reaching an agreement with the government that allowed it to resume  preliminary construction at the wind-farm site while the suit is pending; the CFIUS order previously directed Ralls to “cease all [c]onstruction and [o]perations at the site.”  Although correlation does not imply causation, it suggests that the suit has improved Ralls’ position with respect to CFIUS.

Second, although correlation still does not imply causation, the day after the suit was filed, CFIUS sent a report to the President describing its assessment of the risks; by statute, once CFIUS sends such a report, the President has 15 days to  decide whether to take action (e.g., to block or mitigate the transaction).  The deadline runs tomorrow.

Because the  Foreign Investment and National Security Act of 2007 provides that the President’s actions and supporting findings “shall not be subject to judicial review,” there would be a question whether the President’s own actions (if any) would moot the lawsuit.  Ralls has a response (that the suit could continue under the “capable of repetition but evading review” exception to mootness doctrine. as CFIUS reviews each transaction in the first instance).  But  at a minimum, presidential action will be another factor the judge will have to consider as the case proceeds.

It will be interesting to see how things shape up.  For an insightful discussion of the matter, see China Hearsay.

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 to photograph a same-sex commitment ceremony. Will writes:

Eugene Volokh of the UCLA School of Law thinks that [photographer Elaine] Huguenin can also make a “compelled speech argument”: She cannot be coerced into creating expressive works, such as photographs, that express something she is uncomfortable expressing. Courts have repeatedly held that freedom of speech and the freedom not to speak are “complementary components of the broader concept of ‘individual freedom of mind.’ ”

Now here’s my favorite part, for purely selfish reasons. Will continues “New Mexico’s Supreme Court is going to sort all this out, which has been thoroughly reported and discused on the invaluable blog the Volokh Conspiracy . . . .”

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, but sufficiently obscure that even the hardcore law nerds of the Volokh Conspiracy have mentioned it only once before.

On Wednesday, a Chinese-owned wind-farm developer sued CFIUS to seek review of recent CFIUS orders that effectively require the developer to unwind its purchase of four wind-farm projects in Oregon.  The suit is a rarity in a field that has seen virtually no efforts to obtain judicial review.  Even partial success by the plaintiff in obtaining review of CFIUS’s decision could have major implications for foreign direct investment in the United States and increase the transparency of a historically opaque government approval process.  More after the jump. Continue reading ‘Landmark Foreign-Investment Suit Filed’ »