March 2, 2013
DOJ Comments on Noel Canning
We are now beginning to see how the Justice Department will attack the D.C. Circuit's recent Noel Canning decision. As is appropriate, DOJ views this as a problem that is much bigger than the NLRB. In a recent brief to the Third Circuit, written on behalf of the NLRB, the DOJ strongly criticizes the decision based on its constitutional interpretation and dismissal of the long history of recess appointment. The Legal TImes notes some of the brief's points:
"The Noel Canning decision conflicts with nearly two centuries of Executive Branch practice and the decisions of three other Courts of Appeals, two of them sitting en banc," Beth Brinkmann, a top DOJ Civil Division appellate lawyer, [ . . . ] The ruling's constitutional conclusions, Brinkmann continued, "threaten a serious disruption of the separation of powers." [. . .]
That interpretation narrows the scope of when a president can use the recess appointment power. In the papers in the Third Circuit, Brinkmann said the word "the" doesn't carry the specificity the D.C. Circuit assigned to it. [. . . ]
"The real threat to the separation of powers comes from Noel Canning, because it would seemingly allow the Senate to eliminate the President’s recess appointment power" by turning all recesses into intrasession ones, DOJ's legal team said. (The D.C. Circuit ruling limits recess appointment power to intersessions—the time between two sessions of Congress.)
DOJ lawyers said that under Noel Canning every intrasession recess appointment in the country's history—including ten federal trial judges, a CIA director and five appellate judges—would be unconstitutional.
The department also takes issue with the part of the Noel Canning opinion that restricts recess appointment power to vacancies that arise during a recess, not those that existed at the time of a recess.
"By confining the Clause to vacancies that arise during a recess,Noel Canning makes the President’s ability to fill offices turn on the happenstance of when the previous holder left office," Brinkmann wrote. "That approach disserves the purpose of the Clause."
No word yet on whether DOJ will seek a rehearing en banc in the D.C. Circuit (they have until March 8), or will just file a cert. petition. Stay tuned.
Hat Tip: Patrick Kavanagh
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