Thursday, August 28, 2014
The Tenth Circuit yesterday upheld an NLRB order by a Board panel that included Craig Becker, one of President Obama's recess appointments to the Board. The court suggested that the parties might have challenged the NLRB order under the Supreme Court's ruling this summer in Noel Canning (which held that President Obama lacked authority under the Recess Appointment Clause to appoint certain members to the Board). But because the parties didn't raise the argument--and instead actively steered the court away from the point--the court didn't rule on the Board's quorum, and instead upheld the order on the merits.
The order at issue came from an NLRB panel that included Craig Becker, a recess appointee during a two-plus week recess of the Senate. The Supreme Court wrote in Noel Canning that a Senate recess less than ten days is "presumptively too short" to allow the President to make an appointment pursuant to the Recess Appointment Clause. Under that language, Becker's appointment isn't presumptively invalid. But the Tenth Circuit also suggested that it wasn't necessarily valid:
To be sure, the Supreme Court stopped short of validating every appointment made during a recess ten days or longer. One might even read the majority opinion as leaving the door open for future challenges to some such appointments: from the proposition that shorter than ten days is usually too short it doesn't follow that ten days or longer is always enough.
Still, the court didn't touch the issue, because the parties didn't argue it. ("We don't often raise arguments to help litigants who decline to help themselves, especially when the litigants have consciously waived the arguments by steering us away from them and toward the merits instead.") Instead, the court upheld the order on the merits.