National Labor Relations Board (NLRB) v. Noel Canning
SUPREME COURT CASES RELATED BY THIS ISSUE
The Recess Appointments Clause of the Constitution provides that "[t]he 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." Art. II, § 2, Cl. 3. The questions presented are 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.
3. Whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.
Yesterday, the Chamber's National Chamber Litigation Center ("Litigation Center") and its co-counsel filed a brief in the Supreme Court on behalf of their client and the Chamber’s member, Noel Canning Corp., in its challenge to the President’s unconstitutional recess appointments to the NLRB. The case before the Court presents three questions regarding the President’s recess-appointment power under the Constitution.
On the first question presented, the brief argues that the Recess Appointments Clause empowers the President to fill vacancies “during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” By linking “the Recess” to the “next Session,” the Clause makes clear that the President may make unilateral appointments only during “the Recess” between enumerated Senate “Sessions.”
On the second question, the Recess Appointments Clause states that the President may make recess appointments only to fill “Vacancies that may happen during the Recess.” As the uniform understanding of this provision at the founding and for decades after confirms, the Clause means what it says: The vacancy must “happen during”—i.e., arise during—the Recess. The Executive claims that “may happen during” actually means “happen to exist,” but that construction erases “may happen during” from the Clause, while contravening the uniform understanding of the framers.
The brief contends that the answer to the third question is also clear. The Executive agrees that Senate breaks “of three days or less ‘during the Session of Congress,’ . . . are effectively de minimis and do not trigger the President’s recess-appointment authority.” Here, however, the Senate convened sessions every three days throughout the supposed recess. It therefore was not in “the Recess of the Senate” under the Executive’s own test. The Executive urges that the Senate’s sessions—at which the Senate could and did conduct official business—were constitutional nullities, but the Senate, not the President, determines the Rules of its Proceedings. And here, it determined that it was in session every three days.
These limitations on the President’s unilateral recess-appointment power accord with the Clause’s limited purpose. The Constitution provides a “general method” of appointment with advice and consent that serves to “check” presidential power. The Recess Appointments Clause supplies an “auxiliary method,” but limits it to making “temporary appointments” in certain circumstances during ‘“the recess of the Senate.’”
Serving alongside the U.S. Chamber's Litigation Center as co-counsel for Noel Canning are Noel Francisco, Roger King, and James Burnham of Jones Day LLP, as well as Gary Lofland of Halverson Northwest Law Group.
This case has not been decided yet.
U.S. Supreme Court Briefing
(reverse chronological order)
- Argued 1/13/2013.
- Petitioner NLRB's reply brief filed 12/18/2013.
- Reply brief of Charging Party/D.C. Circuit Intervenor/Respondent Teamsters filed 12/2013.
24 merits amici curiae briefs in support of respondent filed 11/25/2013 by
- American Civil Rights Union
- Atlantic Legal and Justice Foundation
- Bulger et al
- Cato Institute
- Citizens United
- Coalition for a Democratic Workplace et al
- Constitutional Law Scholars
- Council on Labor Law Equality
- Daycon Products Company, Inc.,
- ILWU Union
- Independence Institute
- Judicial Watch
- Landmark Legal Foundation
- Mountain States Legal Foundation
- National Federation of Independent Business
- National Right to Work
- Originalist Scholars
- Political Scientists and Historians
- Senate Parlimentary Experts Robert B. Dove and Martin B. Gold
- U.S. Senate Republicans
- Southwestern Legal Foundation
- Speaker of the House John Boehner
- State National Bank of Big Spring & CEI, et al
- Alabama & 16 States
- Respondent Noel Canning's response brief filed by U.S. Chamber Litigation Center 11/18/2013.
- 3 merits amici curiae briefs in support of petitioner filed 9/2013 by
- Brief of Charging Party/D.C. Circuit Intervenor/Respondent Teamsters in support of petitioner filed 9/2013.
- Opening merits brief for Petitioner NLRB filed 9/13/2013.
- Cert. granted 6/24/2013.
- Petitioner NLRB reply brief filed on 6/6/2013.
- Four amici curiae briefs in support of certiorari filed 5/28/2013 by
- Brief of Charging Party/D.C. Circuit Intervenor Int'l Brotherhood of Teamsters in support of certiorari filed 5/2013.
- Respondent Noel Canning's response brief in support of certiorari filed by U.S. Chamber Litigation Center 5/23/2013.
- Petitioner NLRB's certiorari petition filed 4/25/2013.
(reverse chronological order)
- D.C. Circuit decision issued 1/25/2013.
- Amicus curiae brief of Professor Victor Williams in support of NLRB filed 11/2/2012.
- Intervenor Teamsters brief filed 12/5/2012.
- Petitioner Noel Canning and Intervenor U.S. Chamber reply brief filed 11/20/2012.
- Respondent NLRB answering brief filed 10/26/2012.
- Petitioner Noel Canning and Intervenor U.S. Chamber motion to consolidate oral argument filed 10/11/2012.
- 3 amici curiae briefs in support of Noel Canning filed by U.S. Senators, Speaker of the House John Boehner, and Landmark Legal Foundation 9/26/2012.
- Opening brief of petitioner Noel Canning and intervenor U.S. Chamber filed 9/19/2012.
- Court response to intervention motion issued 6/21/2012.
- U.S. Chamber's reply to NLRB's opposition to intervention filed 4/23/2012.
- NLRB opposition to U.S. Chamber's motion to intervene filed 4/5/2012.
- Motion of NRTW to intervene filed 3/23/2012.
- Motion of Int'l Brotherhood of Teamsters to intervene filed 3/21/2012.
- Motion of U.S. Chamber to intervene filed 3/15/2012.
- Noel Canning's petition for review of NLRB decision 2/24/2012.
- NLRB decision against Noel Canning 2/8/2012.
Judges in this case: Sentelle, Chief Judge; Henderson and Griffith, Circuit Judges.