[EL] FW: DC Circuit decision on recess appointments - Canning v. NLRB

[Scarberry, Mark]

I thought this might be of interest to the list members.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law


-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Friday, January 25, 2013 9:34 AM
To: Conlawprof at lists.ucla.edu
Subject: DC Circuit decision on recess appointments - Canning v. NLRB

The DC Circuit has ruled that the recess appointments to the NLRB were unconstitutional. I haven't fully digested it, but it appears to me that this is a blockbuster decision holding that (1) recess appointments cannot be made during intra-session adjournments but only between sessions, (2) the vacancy must "arise" between sessions (not while the Senate is in session and not during an intra-session adjournment), and (3) the vacancy can only be filled by recess appointment during the same inter-session recess in which it arose. Again, I have just skimmed the opinion.

As a result, the NLRB's actions were invalid; it lacked a quorum because the recess appointees were not validly appointed. 

See http://www.cadc.uscourts.gov/internet/opinions.nsf/D13E4C2A7B33B57A85257AFE00556B29/$file/12-1115-1417096.pdf.

One of the three judges on the panel thought it unnecessary to reach points 2 and 3, which seems to me to be correct.

I can't imagine the Supreme court denying cert on this.

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law