We’ve previously written about the D.C. Circuit’s decision in Noel Canning v. NLRB, which held that President Obama’s three recess appointments in 2012 to the National Labor Relations Board (NLRB) are unconstitutional. The Solicitor General has just filed a petition for certiorari, asking the Supreme Court to review the D.C. Circuit’s decision.
The Obama administration’s decision to seek Supreme Court in Noel Canning is unsurprising. By invalidating the recess appointments to the NLRB, the D.C. Circuit’s decision undermines every action by the NLRB since those appointments were made on January 4, 2012. The decision also casts a dark shadow over actions since that date by the Consumer Financial Protection Bureau (CFPB), because the CFPB’s director (Richard Cordray) received a recess appointment at the same time as the three NLRB members whose appointments are at issue in Noel Canning. For more details, please see our report on the D.C. Circuit’s decision in Noel Canning.
Barring extensions, the opposition to the certiorari petition is due May 28, 2013. Because of the timing of the filing of the petition, the Supreme Court ordinarily would not consider whether to grant review until after the summer recess, during the Court’s first conference in late September 2013. It is possible that the response to the petition could be filed early, however, in order to enable the Court to make the certiorari decision before its summer break.
UPDATE (4/29/13): According to an article in Reuters, Noel Canning won’t oppose Supreme Court review:
Gary Lofland, the Seattle attorney representing Noel Canning, said they would encourage the court to take the case.
“We believe that it’s important that the court resolve this issue because it provides a better certainty to the business community,” Lofland said in an interview.
Hat tip: Volokh Conspiracy.