Further thoughts on the Supreme Court’s grant of review in NLRB v. Noel Canning


As we have reported in this blog and in an E-Alert, the Supreme Court on Monday June 24 granted certiorari in the Noel Canning case, in which the D.C. Circuit held that President Obama’s January 4, 2011 recess appointments to the NLRB were invalid under the Recess Appointment Clause of the Constitution, Art. II, § 2, cl. 3. The Supreme Court’s decision will also have an impact on the validity of actions taken by the CFPB under the leadership of Richard Cordray, the validity of whose recess appointment is essentially indistinguishable from that of the NLRB appointees.

The questions that had been presented by the Government’s petition for certiorari were as follows:

 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 that recess.

In addition to the questions presented by the petition, the Court, in granting the writ, has directed the parties to brief and argue the following question:

 3.  Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.

This third question is quite significant, as the Court could potentially dispose of the case on that ground alone. Doing so would, of course, be consistent with longstanding doctrine that federal courts should not, in general, decide constitutional questions unnecessarily.

A decision on Question 3 would necessarily be either a vindication or a nullification of the pro forma session technique, which arose during the administration of George W. Bush to limit recess appointments and continued into the administration of Barack Obama. A negative answer to Question 3 would validate the pro forma session technique and would obviate the need to decide either Question 1 or Question 2 by holding that during pro forma sessions of the Senate no recess of any kind – intersession or intrasession – exists.

In contrast, an affirmative answer to Question 3 would mean that such pro forma sessions do not accomplish their essential purpose and do not negate the existence of a recess of the Senate. Under such an outcome, the Court would then have to reach Question 1 and affirm or reverse the D.C. Circuit’s decision on that issue. In that scenario, an affirmance on Question 1 would be dispositive. On the other hand, if the Court were to reverse on Question 1, it would then have to decide Question 2 as well.

There is also, of course, the possibility that the Court, despite having ordered briefing and argument on Question 3, might decline to decide it. That would have the same effect, with respect to Questions 1 and 2, as an affirmative answer to Question 3.

Another aspect of the grant of certiorari in Noel Canning is its political impact. Had the Court denied certiorari, the pressure on the Senate to resolve the confirmation disputes involving both the NLRB recess appointees and Richard Cordray as Director of the CFPB would have intensified. Neither agency would be able to operate effectively with the threat of invalidation of any final agency action hanging like the fabled Sword of Damocles. In the CFPB’s case, that might have impelled both sides of the aisle to reach a negotiated resolution to Republican demands for changes to the structure and financing of the agency. With Supreme Court review granted, however, neither side has any particular incentive to reach a political resolution. They can simply sit back and await the Court’s decision, which, with briefing over the summer and oral argument sometime in the fall, likely will not be issued before the recess appointments in question (as well as that of Mr. Cordray) will have expired at the end of this year.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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