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No. 12-1281: NLRB V. Noel Canning

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No. 12-1281: NLRB V. Noel Canning No. 12-1281 In the Supreme Court of the United States NATIONAL LABOR RELATIONS BOARD, PETITIONER v. NOEL CANNING, A DIVISION OF THE NOEL CORP., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE PETITIONER DONALD B. VERRILLI, JR. Solicitor General Counsel of Record STUART F. DELERY Assistant Attorney General EDWIN S. KNEEDLER Deputy Solicitor General BETH S. BRINKMANN Deputy Assistant Attorney LAFE E. SOLOMON General Acting General Counsel CURTIS E. GANNON CELESTE J. MATTINA Assistant to the Solicitor Deputy General Counsel General JOHN H. FERGUSON DOUGLAS N. LETTER MARGERY E. LIEBER SCOTT R. MCINTOSH Associate General Counsels MELISSA N. PATTERSON BENJAMIN M. SHULTZ LINDA DREEBEN Deputy Associate General Attorneys Counsel Department of Justice National Labor Relations Washington, D.C. 20530-0001 Board [email protected] Washington, D.C. 20670 (202) 514-2217 QUESTIONS PRESENTED The Recess Appointments Clause of the Constitution provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Art. II, § 2, Cl. 3. The questions presented are: 1. Whether the President’s recess-appointment pow­ er may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between sessions of the Senate. 2. Whether the President’s recess-appointment pow­ er may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess. 3. Whether the President’s recess-appointment pow­ er may be exercised when the Senate is convening every three days in pro-forma sessions. (I) PARTIES TO THE PROCEEDING In addition to the parties named in the caption, the International Brotherhood of Teamsters Local 760 is also a party to the proceeding. It was an intervenor in the court of appeals. (II) TABLE OF CONTENTS Page Opinions below ................................................................................1 Jurisdiction ......................................................................................1 Constitutional and statutory provisions involved ......................1 Statement .........................................................................................2 Summary of argument ...................................................................7 Argument .......................................................................................11 A. The President’s recess-appointment authority is not confined to inter-session recesses of the Senate .................................................................................12 1. The constitutional text authorizes appointments during intra-session recesses ....................................13 2. Intra-session recess appointments are necessary to serve the purposes of the Recess Appointments Clause ...................................19 3. Long-standing practice supports intra­ session recess appointments .....................................21 B. The President may fill any vacancy that exists during the recess of the Senate .......................................28 1. The reference to “Vacancies that may happen during the Recess” can be reasonably read as including vacancies that exist during the recess............................................................................29 2. The Clause’s purposes are best served by allowing the President to fill a vacancy that exists during a recess .................................................31 3. Since the 1820s, the vast majority of Presi­ dents have made recess appointments to fill vacancies that arose before a particular recess but continued to exist during that recess............................................................................35 4. Before 1823, there was no settled understanding that the President was precluded from filling vacancies during a recess that first arose before that recess began ........................................................38 (III) IV Table of Contents—Continued: Page C. The Senate is in “recess” for purposes of the Recess Appointments Clause when, for 20 days, a Senate order provides for only fleeting, concededly “pro forma” sessions at which “no business” is to be conducted .....................................44 1. The Senate is in recess when it cannot receive communications from the President or participate as a body in the appointment process .........................................................................45 2. Despite the pro-forma sessions, the 20-day period at issue here bore the hallmarks of a recess............................................................................47 3. The mere possibility that the Senate might suspend its “no business” order during the 20-day period did not prevent that period from constituting a recess .........................................52 4. Historical practice does not support the use of pro-forma sessions to prevent the Presi- dent from making recess appointments ..................55 5. Even assuming the pro-forma sessions could satisfy the Senate’s other constitu- tional obligations, they impermissibly disrupt the balance struck by Article II ..................59 Conclusion......................................................................................64 Appendix A — Appointments currently known to have been made during intra-session recesses of the Senate, by appointment date .................................................................. 1a Appendix B — Illustrative recess appointments made to fill vacancies that pre-existed the recesses during which they were made.... 65a Appendix C — Constitutional and statutory provisions ..... 89a V TABLE OF AUTHORITIES Cases: Page Case of the Dist. Att’y of the United States, 7 F. Cas. 731 (E.D. Pa. 1868) (No. 3924) ........................... 36 Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005)............................. 11, 27, 36 Farrow, In re, 3 F. 112 (C.C.N.D. Ga. 1880) ................. 36, 37 Free Enter. Fund v. Public Co. Accounting Over- sight Bd., 130 S. Ct. 3138 (2010) ......................................... 34 Gould v. United States, 19 Ct. Cl. 593 (1884) ...................... 24 INS v. Chadha, 462 U.S. 919 (1983)...................................... 28 Mistretta v. United States, 488 U.S. 361 (1989)............ 27, 38 Morrison v. Olson, 487 U.S. 654 (1988) ............................... 64 Myers v. United States, 272 U.S. 52 (1926) ................... 19, 63 NLRB v. Enterprise Leasing Co. Se., 722 F.3d 609 (4th Cir. 2013)........................................................................ 11 NLRB v. New Vista Nursing & Rehab., 719 F.3d 203 (3rd Cir. 2013), petition for reh’g pending (filed July 1, 2013; stayed July 15, 2013) ................... 11, 13, 15, 63 NLRB v. RELCO Locomotives, Inc., No. 12-2111, 2013 WL 4420775 (8th Cir. Aug. 20, 2013) .......................... 4 New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010) .................................................................................. 2, 58 Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) ........ 59 Printz v. United States, 521 U.S. 898 (1997) ....................... 21 The Pocket Veto Case, 279 U.S. 655 (1929) .............. 27, 38, 47 United States v. Allocco, 305 F.2d 704 (2d Cir. 1962), cert. denied, 371 U.S. 964 (1963)................................... 11, 36 United States v. Midwest Oil Co., 236 U.S. 459 (1915) ...... 28 United States v. Munoz-Flores, 495 U.S. 385 (1990).......... 60 United States v. Smith, 286 U.S. 6 (1932)............................ 51 VI Cases—Continued: Page United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) ................................................................................. 11, 36 Wright v. United States, 302 U.S. 583 (1938) ................ 18, 47 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ............................................................................... 28 Constitutions, statutes and rule: U.S. Const.: Art. I: § 3, Cl. 5 ........................................................................ 16 § 4, Cl. 2 .................................................................. 17, 61 § 5, Cl. 4 (Adjournment Clause) ........ 10, 17, 18, 44, 59 § 7, Cl. 2 (Pocket Veto Clause) ...................... 17, 44, 46 Art. II ...................................................................... 11, 12, 62 § 2: Cl. 2 (Appointments Clause).................... 17, 62, 63 Cl. 3 (Recess Appointments Clause).......... passim § 3 (Take Care Clause) ........................................ 19, 63 Amend. XX, § 2 ............................................ 2, 17, 20, 48, 61 Amend. XXV, § 4 (Presidential Inability Clause)......... 44 Articles of Confederation of 1781: Art. IX, Para. 5.................................................................. 15 Art. X, Para. 1.................................................................... 15 Pa. Const. of 1776, § 20 ........................................................... 16 Vt. Const. of 1777, Ch. II, § XVIII ........................................ 16 Act of Apr. 2, 1792, ch. 16, 1 Stat. 246................................... 40 Act of Feb. 13, 1801, ch. 4, 2 Stat. 89: § 4, 2 Stat. 89-90................................................................. 42 § 21, 2 Stat. 96-97 .............................................................
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