Rule of Law

Think Tank Urges High Court To Weigh Recess Appointments

By Abigail Rubenstein


The Constitutional Accountability Center on Tuesday urged the U.S. Supreme Court to review the D.C. Circuit’s blockbuster Noel Canning decision, saying the appeals court’s invalidation of the president’s recess appointments to the National Labor Relations Board undermines the Constitution’s recess appointments clause.


Contrary to the D.C. Circuit’s interpretation, which held that the president can only make a recess appointment during an intersession recess and only for a post that becomes vacant during that recess, the framers of the constitution intended for the clause to allow the president to make recess appointments during both intersession and intrasession recesses of Congress and to make them to any vacancies that exist during the recess, the think tank argues in an amicus brief.


“[T]he decision of the court below is in conflict with the decisions of other federal courts of appeals, contradictory to settled executive branch practice, and inconsistent with the Constitution’s text and history,” the brief said.


As such, the Constitutional Accountability Center, which bills itself as a “a think tank, public interest law firm and action center dedicated to fulfilling the progressive promise of our Constitution’s text and history,” is asking the court to take up the case as the NLRB has requested and reverse the D.C. Circuit’s ruling.


The NLRB has asked the Supreme Court to weigh in on whether recess appointments can be made during breaks in a given Senate session or are limited to the periods between enumerated Senate sessions, in addition to whether presidents can use recess appointments to fill vacancies that arose before the recess began.


The D.C. Circuit answered both questions in the negative when it ruled that the Jan. 4, 2012, recess appointments of Terence Flynn, Sharon Block and Richard F. Griffin Jr. were invalid. The NLRB needs a three-member quorum to operate and is currently composed of Chairman Mark Gaston Pearce, Block and Griffin. Flynn stepped down last May.


The appeals court’s decision led to a rash of legal challenges based on the NLRB’s alleged lack of power to do business and cast in doubt all board decisions and rulemaking in which the allegedly improperly seated board members participated.


Soda bottler Noel Canning, whose challenge to an adverse NLRB decision led to the ruling, said May 23 that it would not oppose the NLRB’s April 25 bid for high court review. But the company did argue that the NLRB, which identified two questions for the high court to address, had framed the appeal too narrowly.


Noel Canning has also found amicus support for its position. A group of GOP senators lodged a brief pressing the high court to take the case, saying the recess appointments “endanger the Congress’ role in providing a check on the excesses of the executive branch.”


And the Coalition for for a Democratic Workplace, which is made up of employers and business groups, filed a brief arguing that even though it agrees with the D.C. Circuit ruling, the Supreme Court must intervene to ensure consistency across jurisdictions.


The Supreme Court is expected to decide in June whether to take the case, but it is widely expected to grant certiorari.


The Constitutional Accountability Center is represented by in-house attorneys Douglas T. Kendall, Elizabeth B. Wydra, Brianne J. Gorod and David H. Gans.


Noel Canning is represented by Gary Lofland of Halverson Northwest Law Group, Lily Fu Claffee, Rachel Brand, Steven Lehotsky and Sheldon Gilbert of the National Chamber Litigation Center Inc., and Noel Francisco, G. Roger Kin and James Burnham of Jones Day.


The case is National Labor Relations Board v. Noel Canning et al., case number 12-1281, in the U.S. Supreme Court.


–Additional reporting by Ben James. Editing by Elizabeth Bowen.