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

[Adam Bonin]

Would this invalidate any FEC decision entered from January 2006-December
2007, when I believe the Commission had three recess-appointed members (von
Spakovsky, Lenhard, Walther)?


Adam C. Bonin
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-----Original Message-----
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
Scarberry, Mark
Sent: Friday, January 25, 2013 1:02 PM
To: law-election at department-lists.uci.edu
Subject: [EL] FW: DC Circuit decision on recess appointments - Canning v.
NLRB

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/D13E4C2A7B33B57A85257AFE0
0556B29/$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
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