No Opposition Expected to SG’s Certiorari Petition in Noel Canning

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As we reported earlier, the Solicitor General of the United States (SG) has filed in the U.S. Supreme Court a petition for a writ of certiorari to the U.S. Court of Appeals for the District of Columbia Circuit in Noel Canning v. NLRB. As the Court considers whether to take up the case, the Justices apparently will face no pressure to decline hearing it; according to a Reuters report, Noel Canning’s counsel says they will support a Court hearing.

The Noel Canning decision invalidated the recess appointments of three National Labor Relations Board (NLRB) members as incompatible with the Recess Appointments Clause (RAC) of the Constitution. In addition, the decision cast a cloud over the validity of Richard Cordray’s simultaneous recess appointment as CFPB Director.

A backup to the default process of Senate “advice and consent” for presidential appointments, the RAC authorizes the President to fill vacancies “that may happen during the Recess of the Senate,” through appointments that expire at the end of the next session. In Noel Canning, the D.C. Circuit held that “the Recess” referred only to an intersession recess of Congress, and not to an intrasession recess. The court also held that to qualify for a recess appointment under the RAC, the vacancy must “happen” during the intersession recess. The petition invokes a split in the circuits (most notably with 11th Circuit’s 2004 ruling in  Evans v. Stephens, the rationale of which the D.C. Circuit expressly rejected) and attacks both holdings in Noel Canning head-on.

After pointing out that the decision would dramatically curtail the scope of presidential authority under the RAC and calls into question every NLRB order issued since January 4, 2012, the petition argues that neither the text nor the historical implementation of the RAC supports confining it to intersession recesses. The use of “the” is not dispositive, since the word can equally refer to an individual item or a class of items (compare “the pen is on the desk” with “the pen is mightier than the sword”), and prior practice (mostly in the 20th century) has accorded a “functional” approach to the word “recess” that would encompass both the intersession and intrasession varieties.

The petition next argues that executive branch practice—comprising the actions of former Presidents and several Attorney General opinions—has construed the phrase “that may happen” as referring to vacancies that exist during a recess, regardless of whether they came into existence then or occurred before the recess. That construction, the SG asserts, is supported by the Evans case and two other circuit court opinions: United States v. Woodley, issued by the Ninth Circuit in 1985, and United States v. Allocco, issued by the Second Circuit in 1962. The petition also argues that something can be said to “happen” throughout a period and not merely at one point in time (e.g., World War II “happened” during the 1940s, even though it began in 1939).

More persuasively, the petition argues that the consequences of denying review are severe. They include hamstringing the NLRB, calling into question dozens of recess appointments of prior administrations (and the validity of acts performed by those appointees), and other collateral consequences. There are also collateral consequences for the CFPB and the validity of actions taken under Mr. Cordray if certiorari is denied.

Although it is premature to weigh in on the merits of the SG’s arguments about the proper interpretation of the RAC, the split in the circuits and the obvious importance of the case to the functioning of our form of government cannot be denied. This significantly raises the odds of obtaining the writ. It is perhaps for that reason—and the absence of compelling arguments to the contrary—that the Respondent has indicated that it will not oppose the petition.

While I do not believe that the Court will duck the case on “political question” grounds, the case certainly has an overtly political aspect. It only arose as a result of the use of “pro forma sessions” in the Senate at three-day intervals. Though such sessions contemplated the conduct of no senatorial business, they were intended to preclude the President from making any recess appointments by negating the existence of a recess or adjournment of any sort. (Article I, Section 5 of the Constitution says, in part, “Neither House, during the Session of the Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.”)

These “pro forma sessions” were an innovation adopted by the Democratically controlled Senate during the administration of George W. Bush, a Republican, to keep him from using the RAC to appoint federal judges whose nominations otherwise would not likely receive Senate confirmation. Those same pro forma sessions were invoked even under a Democratic administration from December 2011 through January 2012. Interestingly, the December sessions turned out not to be “pro forma” after all; some Senate business was conducted during this period. In-depth analysis of these facts was, however, conspicuously absent from the petition for certiorari.

At issue is the tension between two potential abuses of power. One is that the Senate could prevent the President from making recess appointments even when the Senate is unavailable to give its advice and consent. This is possible under the D.C. Circuit’s interpretation of the RAC. The SG’s interpretation, in contrast, would allow the President to use the RAC to evade the advice and consent process altogether, even though the Constitution makes the latter the default mechanism and the former merely an emergency backup.

If the Supreme Court agrees to hear the case, its Rules call for a period of more than three months after that in which both sides have opportunities to file briefs on the merits. This means that even if the Supreme Court were to grant certiorari tomorrow, the briefing process could not be completed before the Court adjourns in June for its summer recess. The earliest that oral arguments could be heard, and a decision rendered, would be during the October 2013 Term.