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US Chamber of Commerce Takes Up Recess Appointments Fight in Supreme Court

Posted in Employment, U.S. Supreme Court

We’ve blogged about the D.C. Circuit’s ruling in Noel Canning v. NLRB (pdf) that President Obama’s three 2012 recess appointments to the National Labor Relations Board are unconstitutional. The consequence of that decision was to invalidate the NLRB decision against Noel Canning for lack of a quorum of NLRB members. The decision also cast a dark cloud over many other NLRB decisions, as well as the recess appointment of Consumer Financial Protection Bureau head Richard Cordray.

As we mentioned, the Solicitor General already filed a petition for certiorari in Noel Canning. The National Chamber Litigation Center has just filed a brief in response—the first time that Chamber lawyers have ever directly represented a member company before the Supreme Court.

The Chamber’s brief (pdf) agrees that the D.C. Circuit’s decision is worthy of Supreme Court review, and explains why the D.C. Circuit’s decision should be upheld.

Under the current schedule, the Supreme Court will consider the petition during the June 20, 2013 conference and possibly act on it in the orders list on June 24. If the Solicitor General waives the right to file a reply brief, however, the petition could be resolved a week earlier, on June 17.

In related news, in another case, the Third Circuit agreed with the D.C. Circuit’s conclusion that the Constitution permits recess appointments only during “intersession breaks”—that is, during periods between sessions of the Senate. As with the 2012 recess appointments at issue in Noel Canning, the 2010 recess appointment at issue in the Third Circuit case, NLRB v. New Vista Nursing & Rehabilitation (pdf), was made during a break in the middle of a session. Judge Smith wrote the decision, which Judge Van Antwerpen joined. Judge Greenaway dissented. Presumably, the Solicitor General will file a petition for certiorari in New Vista asking that the case be held pending the outcome of Noel Canning.