The Government’s Trick Question in Noel Canning

The first question presented by the administration’s cert petition in the Noel Canning case turns out to be a trick question:

“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.”

Why is the government using the word “enumerated”? By using that word, and using it only in connection with one of the two references to Senate sessions, it leaves the impression that there is a difference between a “session” and an “enumerated session” of the Senate. It would not seem to be in the government’s interest to leave that impression.

Nor would it seem to be in its interest to highlight the word “enumerated.” I can just hear Justice Scalia: “Where in the Constitution does it refer to ‘enumerated’ sessions?” “Would this case be different if Congress alphabetized its sessions?”

As it happens, I think there is a difference between a “session” and an “enumerated session” of the Senate. That means that there is a third option beyond those presented in the government’s question. There can be no recess appointments within a “session” of the Senate, but there can be recess appointments that are not between “enumerated sessions” of the Senate. So the correct answer to the government’s question is “no.”

Noel Canning: Does It All Depend On What The Meaning Of “The” Is?

In Noel Canning v. NLRB (Jan. 25, 2013), the D.C. Circuit held that President Obama’s January 4, 2012 recess appointments to the National Labor Relations Board were constitutionally invalid because the Senate was in an intrasession adjournment at the time. The court held that only a period of intersession adjournment constitutes “the Recess” of the Senate within the meaning of the Recess Appointments Clause.

The court has been the subject of some justifiable criticism (see Professors Garrett Epps here and Eric Posner here) for its emphasis on the fact that the RAC refers to “the Recess,” rather than “a Recess.” In the court’s estimation, this fact leads to the “inescapable conclusion” the Framers intended “something specific” by “the Recess.” The court concludes that the Framers must have used “the Recess” to mean something narrower and more specific than any break in the proceedings. It contrasts the Constitution’s use of “the Recess,” which appears only in the RAC and the Senate Vacancies Clause, with its use of the terms “adjourn” and “adjournment” to signify any break in proceedings.

Continue reading “Noel Canning: Does It All Depend On What The Meaning Of “The” Is?”

Recess Appointment News

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.

Noel Canning Timing

I hear through the grapevine that the Justice Department has decided not to seek en banc review of the Noel Canning decision, but instead will petition for cert on a non-expedited basis, meaning that the case would likely be heard by the Supreme Court next term.

Recess Appointments Issue Could Reach SCOTUS Sooner than Expected

As explained by the Blog of the Legal Times, an emergency petition has been filed with Justice Ruth Bader Ginsburg raising the validity of the recess appointments to the NLRB. The petition was filed by Paul Clement on behalf of a company that is resisting an NLRB effort to require it to rehire striking nursing care workers in Connecticut. Clement argues that the recess appointments issue will inevitably reach the Supreme Court following the D.C. Circuit’s decision in the Noel Canning case so (I guess) the Court might as well go ahead and consider the issue now.

Justice Alito’s sister appears as counsel on the application which means, I assume, that he would have to recuse himself from the case.

Update: after Justice Ginsberg denied the application, Clement filed the application with Justice Scalia.

Update 2: That didn’t work either.


How Might the Administration Respond to the Noel Canning Decision?

Professor Seth Barrett Tillman takes issue with point 5 (see update below)

Here are the options I can think of for the administration and/or Senate Democrats to respond to the D.C. Circuit’s invalidation of President Obama’s January 2012 recess appointments to the National Labor Relations Board. Three of the options involve seeking to reverse the decision and three involve strategies to get Senate confirmation so as to permanently fill the vacancies. Note that the latter doesn’t necessarily solve the problem of NLRB (and perhaps CFPB) actions being invalidated for the period during which the recess appointees served.

1. Seek rehearing en banc. This would seem like the most obvious first step, except for the fact that there are only 8 active judges on the D.C. Circuit, meaning that all five of the judges not on the panel would have to vote for taking it en banc (assuming that the three judges on the panel vote against it). This is not impossible, and it is also possible that Judge Griffith, who declined to join the majority opinion with respect to the issue of when vacancies “happen,” could vote for rehearing to narrow the scope of the opinion. But if rehearing were granted, the most likely outcome is that the administration would still lose, just on narrower grounds.

2. Seek Supreme Court review. I have to assume that the Department of Justice will eventually do this because it simply cannot permit the D.C. Circuit opinion to stand as written. It perhaps could have lived with a narrow decision that only found that the Senate was in session when it held pro forma sessions, but Judge Sentelle’s opinion would make virtually every recess appointment legally questionable. The only issue is whether DOJ feels that it has to seek Supreme Court review immediately, or whether it tries to get en banc rehearing first.

I think there is a very high likelihood that the Supreme Court will take up this case. Of course I have been wrong before.

3. Use the new Senate rules to get permanent appointees confirmed. The Senate made some changes to its filibuster rules this week that are supposed to streamline the confirmations process. At the end of the day, however, the rules still permit the minority to filibuster a nomination (to my understanding- I haven’t had a chance to study the new rules yet). So this seems like a long shot.

4. Use the nuclear option. The Senate Democratic majority could be so ticked off by the Noel Canning decision that it could decide to use the “nuclear option” to prevent filibusters on nominations. The currently fashionable theory is that the “nuclear option” can only be used at the beginning of a new Congress, and that window would seem to have closed with the Senate’s adoption of rules changes this week. But who is to say that the Senate won’t fall in love with a new theory?

5. Prorouge [Make that Prorogue] Congress. If the Senate wanted to go into “recess” (i.e., the kind of recess the D.C. Circuit would accept for purpose of making recess appointments), it could ask the House for an adjournment and, if it refused (which presumably it would), the President could exercise his power to “adjourn them to such Time as he shall think proper” under art. II, section 3, cl. 2. No president has ever exercised this power before and it is not clear whether the adjournment would actually end the session, but its still possible . . . .

6.  Pack the D.C. Circuit. There are three vacancies on the D.C. Circuit. Obama could make recess appointments to fill them and then the new judges could vote for rehearing en banc. That should set off a fine constitutional crisis.


Update -Professor Tillman emails the following comment

I have to disagree with point 5.

First, you misspelled prorogue!

Second, and more substantively, if the House refused to agree to an adjournment with a concomitant termination of the session and the start of a new session, in other words, if the House refused to create a recess, you suggest that the President could use his Article II power to “adjourn the[] [two Houses] to such Time as [the President] shall think proper.” But, I do not think this will work . . . . Presidential action here is just an adjournment order, not a proper recess. See Jefferson’s Manual Section 50. The President’s action will not terminate extant legislative business. So it does not create a recess per the Recess Appointments Clause. Moreover, even if it did create a recess, you are still stuck (in the case of NLRB and CFPB) with the fact that the vacancies will not have arisen during the newly manufactured recesses.

Still I think you are on to something vis-a-vis proroguing the Senate. There is some reason to believe that even if the Senate is in (legislative or executive) session, the President still has an independent power to convene the Senate. This is a different power from the Article II to which you referred. The Constitution states: The President “may, on extraordinary Occasions, convene both Houses, or either of them.” Jefferson took the position that a session convened by presidential proclamation terminates the old session and starts a new one. See Jefferson’s Manual Section 51. See generally Ashley v. Keith Oil Co., 7 F.R.D. 589, 591–92 (D. Mass. 1947) (Wyzanski, J.). And, of course, you could always read my papers on congressional continuity in different contexts: Seth Barrett Tillman, Noncontemporaneous Lawmaking: Can the 110th Senate Enact a Bill Passed by the 109th House?, 16 Cornell J.L. & Pub. Pol’y 331 (2007),; Aaron-Andrew P. Bruhl, Response, Against Mix-and-Match Lawmaking, 16 Cornell J.L. & Pub. Pol’y 349 (2007),; Seth Barrett Tillman, Defending the (Not So) Indefensible: A Reply to Professor Aaron-Andrew P. Bruhl, 16 Cornell J.L. & Pub. Pol’y 363 (2007),



D.C. Circuit to Wirt and Daugherty: Drop Dead

Your humble blogger is pretty much speechless after the D.C. Circuit’s sweeping decision today in the Noel Canning recess appointments case. In light of the oral argument, it is not all that surprising that the panel held that the Recess Appointments Clause only permits inter-session recess appointments. But I am pretty stunned (although admittedly this was foreshadowed in the oral argument as well) that it also held that the Clause only permits recess appointments for vacancies that actually occur during a recess. Why it chose to reach the latter issue (when, as Judge Griffith points out in his partial concurrence, it did not need to) is a matter of speculation. Here’s mine: to guarantee that the Supreme Court will hear the case.

Further analysis of the decision will have to wait awhile. But for the moment let me point the following passage from Judge Sentelle’s opinion:

The Clause sets a time limit on recess appointments by providing that those commissions shall expire “at the End of their [the Senate’s] next Session.” Again, the Framers have created a dichotomy. The appointment may be made in “the Recess,” but it ends at the end of the next “Session.” The natural interpretation of the Clause is that the Constitution is noting a difference between “the Recess” and the “Session.” Either the Senate is in session, or it is in the recess.

 (emphasis added). For reasons I have previously stated at interminable length, this is clearly correct.

Does James Monroe’s Presence at the Virginia Ratifying Convention Shed Light on the Meaning of the Recess Appointments Clause?

More from the Noel Canning argument: No doubt much to her surprise, Beth Brinkmann was questioned intensively about the meaning of the phrase “which may happen” in the Recess Appointments Clause. Both Judge Sentelle and (to a lesser extent) Judge Griffith were unimpressed by the longstanding executive branch position, dating back to Attorney General Wirt in 1823, that this phrase means vacancies that “happen to exist” during the recess.

In response, Brinkmann pointed out that Wirt was advising President Monroe, whom she identified either as a “framer” or a “founder” (I can’t remember which) of the Constitution.  This fact, she suggested, bolstered the credibility of Wirt’s interpretation.

Monroe was not at the 1787 Philadelphia Convention, but he was a delegate to the Virginia convention that ratified the Constitution. Monroe voted against ratification, contending that it gave the federal government too much power. I am fairly sure that there is no evidence of Monroe expressing any view about the RAC at the ratifying convention and, for that matter, I am not aware of Monroe commenting on the RAC at any time in his life.

So what are we to make of the fact that, more than 30 years after the drafting and ratification of the Constitution, Monroe received an opinion from his Attorney General that the RAC applied to all vacancies that “happen to exist,” rather than only those that “happen to arise,” during the Senate’s recess? By Wirt’s own admission, his interpretation relied on the “reason and spirit” of the Constitution, while the contrary interpretation was more consistent with its “letter.” Moreover, although not mentioned (and possibly not known) by Wirt, there were at least two actual framers, Edmund Randolph and Alexander Hamilton, who made far more contemporaneous statements in support of the “happen to arise” interpretation.

Presumably Brinkmann is claiming that if Wirt’s interpretation had been wrong, Monroe would have rushed into Wirt’s office saying something like the following: “Bill- even though I voted against ratifying the Constitution because it gave too much power to the central government, I specifically remember thinking ‘thank goodness it doesn’t give the president the power to circumvent the Senate whenever it fails to confirm his nominees.’ Now take this opinion back and redo it. And by the way, you might want to consider whether joining the Freemasons is a good career move.”

I’d say the probative value of this “evidence” is between slim and none. And Slim’s out of town.

(Almost) Live From the Noel Canning Argument!

There were many important issues raised in today’s D.C. Circuit argument in Noel Canning v. NLRB, the recess appointments case, but lets start with some unimportant ones.

How do you pronounce Harry Daugherty’s name? The Justice Department lawyer representing NLRB, Beth Brinkmann, pronounced it “Dockerty,” and the panel went along with that. I have always pronounced it “Doh-her-tee” or “Daw-her-tee” (according to Wikipedia, its “daw-HER-tee”). I think if DOJ is going to rely so much on Daugherty’s opinion, it should at least know how to pronounce his name. Exit question- how do they pronounce it on “Boardwalk Empire”?

How come this can’t be the Goya Rice case? According to Noel Francisco, who appeared on behalf of Noel Canning and the Chamber of Commerce, the Chamber has standing to intervene in the case because it has at least two members, Noel Canning and Goya Rice, currently participating in proceedings before the NLRB. It would be a lot easier to explain the importance of the Recess Appointments Clause to my children if Goya Rice were the named party—they have never heard of Noel Canning, but we go through a box of Goya Rice every week.

Why isn’t Senate Legal Counsel here? Judge Griffith, himself a former Senate Legal Counsel, asked this question during the argument. Griffith was making the rhetorical point that the Senate had not taken a position in the case, but the literal answer to his question was that Senate Legal Counsel was in an overflow courtroom downstairs. By the time he and the Deputy Senate Legal Counsel arrived, there was no more room in the main courtroom (though Senator McConnell, who arrived afterward, apparently had a reserved seat). I sat in the overflow courtroom as well, where a watchful clerk made sure no one was live blogging the proceedings.

What’s so great about unanimous consent anyway? Francisco argued that since nominees are usually confirmed by unanimous consent, the fact that the Senate could only act by unanimous consent during its pro forma sessions did not prevent the President from getting nominees confirmed. Judges Griffith and Sentelle were at immediate pains to point out that not all nominees are approved by unanimous consent. Sentelle, who was confirmed by an 87-0 vote, reiterated the point, possibly throwing a meaningful look at Griffith (there was only audio in the overflow courtroom). “I said usually,” stressed Francisco. “Lets move on,” said Griffith, who was confirmed 73-24, good-naturedly. Judge Henderson, who was confirmed by unanimous consent, tactfully remained silent.