Thursday, May 16, 2013

Third Circuit Agrees With Noel Canning

NLRBToday, the Third Circuit just issued its decision (2-1) in NLRB v. New Vista Nursing & Rehab Download New Vista ].  I've haven't had a chance to really read it (including the dissent, it comes in at a whopping 157 pages), but it basically follows the D.C. Circuit's conclusion in Noel Canning that recess appointments are only allowed for intersession Senate recesses.

A few interesting things in New Vista.  First, this case--which substantively involved an employer's technical Section 8(a)(5) election challenge--involved former Member Becker's appointment.  This obviously expands the impact of this issue on past Board decisions, although I'm guessing not significantly, as there are probably not a lot of decisions involving Becker that are still pending and include this argument (which the Thrid Circuit held is not waivable).  Second, this only brings up the pressure for Supreme Court review, especially given the split with the Eleventh Circuit.

A final point is that, although I don't think it's an accident that courts are using the NLRB for this issue, what we're dealing with is much bigger than the NLRB.  This a separation of powers fight, and a big one.  Given the Republicans' de facto rule requiring a supermajority for all appointments, these cases severely limit the president's ability to make nominations.  The irony is that these decisions could end up giving the president more power if the Democrats finally decide to go nuclear and change the current filibuster rules, which only requires a majority vote.  I won't make a prediction on that, as there are a lot of factors at play as this battle plays out.  However, although I'm not predicting this either, don't be surprised if the Court ultimately cites its political question doctrine and just lets the elected officials go at it without court interference.  I'm not sure the Justices will be able to resist a big issue that brings in questions of textualism and originalism, but there is a reasonable argument that the political question doctrine is justified here.

Stay tuned!

Hat Tip:  Patrick Kavanagh

-JH

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