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U.S.: Limit appointment power review

The Obama administration has urged the Supreme Court to limit its review of the President’s constitutional power to temporarily fill vacancies in government offices, saying that the Justices should not take on an added question not yet ruled on by any lower court.  Even so, it conceded that it is up to the Court to choose the scope of its review.

The new argument on how far the Court should go came late Thursday as administration lawyers filed their reply brief in National Labor Relations Board v. Noel Canning (docket 12-1281).  The Justices are scheduled to consider at their June 20 Conference whether they will hear the case at all, and what issues they would address if the case is set for review next Term.

When the administration first took the case to the Supreme Court in April, it asked the Justices to rule on the two issues on which appointments to the NLRB had failed in the D.C. Circuit: whether the President may make temporary appointments to vacant posts only at the end of the Senate’s annual sessions or also during other breaks in sessions, and whether the President could fill a post that became open at any time during an annual session or only those that became vacant in the end-of-session periods.

Noel Canning, a soft drink bottling company in Yakima, Washington, notified the Court last month that it did not oppose Supreme Court review of those issues, but it asked the Court to tack on a third question: may the President ever make a recess appointment when the Senate is returning to meet every three days, even if it does little or no business in such a sitting?

That question is essential, the company’s attorneys argued, because it is the one question that would settle whether the specific appointments made by President Obama to the NLRB were constitutional; those were made when the Senate was holding “pro forma” sessions — with maybe only a single senator in the chamber and little or nothing was getting done.   Such recurring formal gatherings should never amount to a recess that creates an opportunity for the President to make an appointment, Noel Canning contended.

While this case was being reviewed by the D.C. Circuit, both sides had taken positions on whether such sessions eliminated the existence of any recess, but, in the end, the Circuit Court did not role on that.   U.S. Solicitor General Donald B. Verrilli, Jr., in the NLRB’s new reply brief, pointed out that fact.

“That question,” the brief said, “was not resolved by the court of appeals, and it has not yet been resolved by any court.”   It might possibly come up in other cases now pending in lower courts, Verrilli conceded, but has not yet been discussed in a final ruling at that level.

It has long been the Court’s practice, the brief noted, that it does not allow itself to be the first to pass upon a constitutional matter.   If the Court did seek in this case to define whether pro forma sessions defeat the existence of a recess, the brief went on, that would only prolong the threat to presidential appointment powers that already existed under the Circuit Court ruling.   That would not eliminate the dispute among courts of appeals on the issues that the government seeks to have reviewed, the document added.

The Solicitor General, however, went on to suggest that this additional issue might actually arise if a lower court were to rule on it in one of the other pending cases, before the Supreme Court could get to the Noel Canning case next Term.

If the Court were inclined “to use this case to decide what effect pro-forma sessions of the Senate have on the existence of a recess,” Verrilli wrote, it should add that question at the time it granted review of the government’s petition.  That would put everyone on notice that they should address that issue, too, in the written briefing.   If it does so, lawyers should be given added space in their merits briefs to discuss that and the issues the Solicitor General has raised, the brief commented.

The case — if granted, as almost everyone assumes it will be — would go over to the next Term, because the Court is driving to finish up its current Term by the end of this month.

Recommended Citation: Lyle Denniston, U.S.: Limit appointment power review, SCOTUSblog (Jun. 7, 2013, 5:24 PM),