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

[Marty Lederman]

Well, if the Supreme Court were to affirm -- a big if -- it would call into
question the actions of hundreds of recess appointees going back to 1921,
if not 1823.  There would then be a wholly separate question, of course, of
whether any of those decisions could be retroactively challenged,
particularly after time has long passed.

On Fri, Jan 25, 2013 at 1:08 PM, Adam Bonin <adam at boninlaw.com> wrote:

> 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
> The Law Office of Adam C. Bonin
> 1900 Market Street, 4th Floor
> Philadelphia, PA 19103
> (215) 864-8002 (w)
> (215) 701-2321 (f)
> (267) 242-5014 (c)
> adam at boninlaw.com
> http://www.boninlaw.com
>
>
>
>
> -----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/$file/12-1115-1417096.pdf<http://www.cadc.uscourts.gov/internet/opinions.nsf/D13E4C2A7B33B57A85257AFE0%0A0556B29/$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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