Tuesday, December 3, 2013

Law Profs Weigh in on Noel Canning

Next month, the Supreme Court will hear arguments in NLRB v. Noel Canning, aka the challenge to President Obama's "recess appointments" to the NLRB. SCOTUSblog has a full rundown of briefs filed in this case. I haven't had time to read them all, but several interesting amicus briefs have been filed by law professors.

The case revolves around the Constitution's Recess Appointments clause:
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.
Brief of Constitutional Law Scholars
Filed on behalf of thirteen law professors, this brief makes three primary arguments:

1. "The original meaning of the text . . . empowered the President to fill vacancies only if they arise while the Senate is in recess."
2. "'[R]ecess' is the formal recess that occurs between formal 'sessions' of the Senate, not including adjournments while a session is in progress."
3. Alternatively, the Senate's pro forma sessions were legitimate and precluded so-called intrasession recess appointments.

In other words, intrasession recess appointments are unconstitutional (in fact, there's no such thing as an intrasession "recess"). Even if they were allowed, the Senate's pro forma sessions would preclude them in this instance.

Brief of Originalist Scholars
The originalist profs similarly concluded that:
(1) the vacancy must arise (“happen”) when the Senate is in recess; and 
(2) “the Recess” refers only to the break between legislative sessions.
However, they did not address the Senate's pro forma sessions.

Brief of Professor Victor Williams
Professor Williams backs the President's appointments, but his brief urges an alternate resolution to the case: "[T]he President's discretionary exercise of of his recess appointment powers is a nonjusticiable political question."

One of the interesting aspects of this case is that it has so many potential outcomes. The Court could conclude that intrasession recess appointments are unconstitutional, or that recess appointments during the Senate's pro forma session are unconstitutional, or that the appointments were a proper exercise of the President's power. Or, the Court could duck the issue altogether by deeming it a "political question." We'll have to wait and see.