Monday, January 13, 2014
The Supreme Court heard arguments in Noel Canning today. I don't have the transcript yet, but based on several reports, the NLRB recess appointments are looking like they will be struck down. That's not a big surprise. What's really in question is how the Court will strike them down. I still hold out hope that they will limit themselves to the pro forma recess issue, and SCOTUSBlog's summary gives some reasons to think that could happen. However, it also notes reasons to think that the Court might go further and adopt some or all of the D.C. Circuit's broad, textualist approach.
One thing I haven't heard being discussed was the possibility of declining jurisdiction under the political question doctrine. I've raised this as a possibility, but I haven't seen anything suggesting it's gained any traction, much less got any mention today. Let me know if you've heard otherwise.
Hat Tip: Patrick Kavanagh