The Justice Department will not seek en banc rehearing of the D.C. Circuit’s decision in Noel Canning, but will seek certiorari instead (the deadline for filing is April 25). Assuming the Court grants the petition (which, pretty much everyone seems to agree, seems likely), arguments will be heard in the fall. It is worth noting that the NLRB recess appointments at issue will expire, even under the administration’s legal theory, no later than January 2014.
A forthcoming student note, by Amelia Frenkel of NYU Law School, argues that the Recess Appointments Clause does not apply to newly-created offices because such unfilled offices are not “vacancies” or are not vacancies that “happen” within the meaning of the RAC. It follows from this argument that President Obama’s recess appointment of Richard Cordray to become the first director of the CFPB was invalid.