NLRB v. Noel Canning

  • October 5, 2015
    Guest Post

    by Victor Williams, Clinical Assistant Professor of Law, Columbus School of Law, Catholic University of America

    On the first Monday in October, the Supreme Court returned from its long summer recess. Thus, the 2014 NLRB v. Noel Canning ruling -- which revoked President Barack Obama’s 2012 NLRB recess appointments – has well passed it first anniversary.

    The high court’s conjuring of an absolutist 3-day Senate recess minimum conjoined with a vague and unworkable “presumptive 10-day” Senate recess rule (with an added “unusual occurrence” complexity) continues to be analyzed.  Some in the academy acclaim Steven Breyer’s majority opinion as reflecting a new “pragmatic formalism” while most others praise it for at-least being opposite Antonin Scalia’s dissenting-concurrence which restated the D.C. Circuit’s uber- textualist ruling.  I continue to think it was a mistake for the judiciary to have involved itself in the political branch appointments battles.

    No reporter, academic, or commentator, however, has yet revealed that Noel Canning also revoked President Lyndon Johnson’s  January 1964 judicial recess appointments of civil-rights legends Leon Higginbotham, Spottswood Robinson, and David Rabinovtiz. In a just-published article in the Houston Law Review’s online edition, I expose the unconsidered Noel Canning consequence of the judgeship revocations.  As the recess commission were signed by Lyndon Johnson during an eight day intersession recess of the 88th Senate,  Noel Canning judged the recess 48 hours too short and the judgeships illegal.  The recess appointments  were “rendered illegitimate” for failing the “presumptive 10-day” recess test.  The eight day break was 48 hours too short.

    Six weeks after John F. Kennedy’s murder, LBJ forced the racial and religious integration of three federal courthouses. The new president signaled his administration’s commitment to civil rights and directly challenged racist and reactionary forces in both the Senate and the federal judiciary. The LBJ White House tapes tell the story for Higginbotham, Robinson, (expect a slight delay) and  Rabinovitz,  and as Johnson made sure he secured the most political capital for signing each commission in the coming battle for the Civil Rights Act.

  • June 26, 2014

    by Jeremy Leaming

    ACS will conduct its annual Supreme Court review tomorrow covering most of the high-profile cases that have come down this term and looking ahead to Monday when more opinions are expected. We are still waiting for opinions in Sebelius v. Hobby Lobby, regarding the contraception policy of the Affordable Care Act, and Harris v. Quinn, a case involving a First Amendment challenge to union representation of state home care workers.

    The high court today issued opinions in NLRB v. Noel Canning, involving the president’s recess appointments power, and McCullen v.Coakley, centering on a First Amendment challenge to a Massachusetts law creating buffer zones around abortion clinics.

    SCOTUSblog publisher Tom Goldstein, who will moderate tomorrow’s ACS Supreme Court Review, said of Noel Canning during live-tweeting at SCOTUSblog this morning:

    Here is the upshot of the decision. The President can make a recess appointment without Senate confirmation when the Senate says it is in recess. But either the House or the Senate can take the Senate out of recess and force it to hold a "pro forma session" that will block any recess appointment. So while the President's recess appointment power is broad in theory, if either house of Congress is in the hands of the other party, it can be blocked.

    Eric J. Segall, the Kathy and Lawrence Ashe Professor of Law at Georgia State University College of Law, also a panelist for tomorrow’s high court review, told ACSblog, “When is a recess not a recess? When it’s less than 10 days. Justices issue a mixed ruling in NLRB v. Noel Canning.”

    Chief Counsel for the Constitutional Accountability Center Elizabeth Wydra in press statement said, “While the Supreme Court voted unanimously to strike down the particular exercise of the Recess Appointments Clause power in the Noel Canning case, more important, the Court – by a sharply divided 5-4 vote – rejected the sweeping arguments made by the U.S. Chamber of Commerce and its allies.” (Wydra is also scheduled to participate in tomorrow’s ACS Supreme Court Review.)

    The U.S. Court of Appeals for the District of Columbia Circuit ruled early last year that President Obama’s appointments to the National Labor Relations Board in early 2012 during “pro forma sessions,” where Congress took deliberate steps to shorten the period for the president to make recess appointments. The president took the action noting that the 5-member NLRB could not function with three languishing vacancies.

  • June 26, 2014
    Guest Post

    by Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Ohio State University, Moritz College of Law. This piece is cross-posted on RegBlog, where it was originially published.

    As losses go, NLRB v. Noel Canning is going to be pretty easy for the National Labor Relations Board (NLRB) and future presidents to live with.

    In a 5-to-4 vote, the U.S. Supreme Court held that Article II’s Recess Appointments Clause empowers presidents to fill vacancies that occur at any time and during any recess—intra-session or intersession—of sufficient length. The Court did invalidate President Obama’s January, 2012, recess appointments of three NLRB members, but only on a narrow two-part rationale. First, a series of pro forma Senate sessions held between December 17, 2011, and January 23, 2012, were effective in dividing this 37-day break into periods of adjournment no longer than three days. Second, periods of intra-session adjournment shorter than 10 days are “presumptively” too short to count as recesses that trigger the president’s recess appointments power. (There is some ambiguity in the majority opinion whether the 10-day rule now applies even to intersession adjournments, which, as far as I know, no party ever argued.) Because of the pro forma sessions – which the D.C. Circuit had not addressed at all – the NLRB owes the Noel Canning Co. a do-over in its unfair labor practice proceeding.

    All in all, it was a good day for the legacy of Chief Justice John Marshall. The majority eschewed implausible claims for the supposed clarity of plainly ambiguous constitutional text, in favor of a constitutional reading that was guided by a history of interbranch practice. Marshall would have approved the Court’s framing of the intra- versus inter-session recess problem:

    The question is not: Did the Founders at the time think about intra-session recesses? Perhaps they did not. The  question is: Did the Founders intend to restrict the scope of the Clause to the form of congressional recess then prevalent, or did they intend a broader scope permitting the Clause to apply, where appropriate, to somewhat changed circumstances? The Founders knew they were writing a document designed to apply to ever-changing circumstances over centuries. After all, a Constitution is “intended to endure for ages to come,” and must adapt itself to a future that can only be “seen dimly,” if at all …We therefore think the Framers likely did intend the Clause to apply to a new circumstance that so clearly falls within its essential purposes, where doing so is consistent with the Clause’s language.

    In short, pragmatism trumped an overconfident textualism.