The Volokh Conspiracy

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.”
Continue reading ‘Noel Canning Recess Appointments Case Fully Briefed And Ready for Decision’ »

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.

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 Court frequently says it is a “court of review, not of first view,” and the government may argue that question should be left for the D.C. Circuit on remand; but then again, given how much litigation the NLRB recess appointments have spawned, it may be happy to have the Court resolve the validity of the appointments once and for all.
Continue reading ‘Noel Canning Recess-Appointments Case: Battle Is Joined’ »

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).

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, even if other parts of the federal government had additional responsibilities to fulfill.

Another challenge to this rule is pending in the U.S. Court of Appeals for the Fourth Circuit.

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.

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.

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.

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. Continue reading ‘ACS Panel on Nominations, Recess Appointments and the Filibuster’ »

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.

For the past week there has been a fair amount of speculation that, because no opinion had yet been posted on its webpage, the Office of Legal Counsel either was not consulted about President Obama’s recess appointment on January 4 of Richard Cordray and three NLRB members, or that it had been consulted and said no recess appointment could lawfully be made while the Senate was conducting pro forma sessions.  

The problem was, as Jonathan Adler noted below, that the White House wouldn’t say publicly whether it had consulted the Justice Department. See here for more. There was understandable concern because of well publicized examples of this Administration obtaining legal opinions from other, less-traditional sources when OLC’s conclusions did not support the action it wished to take.  See here and here for columns by Prof. Bruce Ackerman, here for one by Prof. Michael McConnell, here for a post by Adam White, and here for a post by Ed Whelan.

Well, as I expected, there was indeed an opinion. The Office published it this morning, and it is available here.

Ordinarily, you’d say release of an opinion within a week of relevant executive action is pretty darned fast. After all, OLC opinions sometimes don’t make it on to its website for several months after they’re signed. But given congressional interest and public interest in this matter, this is an instance where simultaneous or near-simultaneous publication (which OLC sometimes manages, see here for an example) might have been helpful. Although Congress and the public does at least have a full explanation of the Administration’s rationale in time to be relevant to the ongoing debate.

More on the opinion later when I’ve had a chance to read it.

UPDATE on contents of the opinion: For starters, in an effort to give its analysis a bipartisan sheen (note the number of Republican Administration OLC opinions it cites), the opinion makes plain what may already have been apparent from my past detailed discussions of the subject, which is that I worked on the OLC’s research into the President’s ability to make recess appointments notwithstanding pro forma sessions back when the Office first considered the subject during the tail end of the Bush Administration. See Op. 4 (citing Memorandum to File, from John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Lawfulness of Making Recess Appointment During Adjournment of the Senate Notwithstanding Periodic “Pro Forma Sessions” (Jan. 9, 2009)). The Bush Administration never made such an appointment, however, and the work was never was finalized (and thus, significantly, I wasn’t at liberty to reveal the nonpublic work I’d done).

The OLC opinion was signed January 6, two days after the recess appointments, but the opinion states (Op. 1) that OLC has already advised them about that question, the production of such a detailed opinion on January 6 suggests that the White House Counsel asked the question in advance of the appointments. The opinion formally advises on “whether the President has authority under the Recess Appointments Clause to make recess appointments during the period between January 3 and January 23 notwithstanding the convening of periodic pro forma sessions,” Op. 1 (emphasis added), thus carving out the period when Senator Reid actually did conduct business at the December 23, 2011 session (which was scheduled to be a pro forma session), as noted in my original post.

The opinion, concludes, essentially:

Although the Senate will have held pro forma sessions regularly from January 3 through January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the President from determining that the Senate remains unavailable throughout to “‘receive communications from the President or participate as a body in making appointments.’” Thus, the President has the authority under the Recess Appointments Clause to make appointments during this period. The Senate could remove the basis for the President’s exercise of his recess appointment authority by remaining continuously in session and being available to receive and act on nominations, but it cannot do so by providing for pro forma sessions at which no business is to be conducted.

Op. 1 (quoting Intrasession Recess Appointments, 13 Op. O.L.C. 271, 272 (1989) (quoting Executive Power–Recess Appointments, 33 Op. Att’y Gen. 20, 24 (1921)).

A more detailed recitation of the opinion’s contents after the jump.

Continue reading ‘OLC Opinion on Pro Forma Sessions and Recess Appointments Published’ »