The entry “DISTRIBUTED for Conference of June 20, 2013” now appears on the Supreme Court’s docket. (The court’s standard procedure is to announce the results of its Thursday conferences on the following Monday at 10 am. Thus, it is likely that the court’s decision on the certiorari petition will be announced at 10 am on June 24.) Since Richard Cordray was appointed CFPB Director on the same day and through the same assertion of “recess” appointment authority as the NLRB members whose appointments are challenged in Noel Canning, the outcome of Noel Canning will have obvious implications for Mr. Cordray’s appointment.
As we reported, respondent Noel Canning’s brief stated that it did not oppose certiorari. However, in addition to the two questions presented in the NLRB’s certiorari petition, the respondent’s brief proposed a third question presented: “Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.”
In its reply brief, the NLRB urges the Supreme Court not to address this third question, noting that it was not resolved by the D.C. Circuit nor by any other court. According to the NLRB, the court “should not address the effect of pro-forma sessions of the Senate unless that question has become suitable for review (which would presumably require at least a decision on that ground by a lower court).” The NLRB further argues that “[r]esolving this case on Noel Canning’s proffered alternative ground would not eliminate the two circuit conflicts created by the decision below and would not remove the constitutional cloud that the court of appeals has placed over the acts of hundreds of past and present recess appointees.”
We also reported that amicus briefs supporting certiorari and urging the Supreme Court to affirm Noel Canning were filed by all of the 45 Republican Senators and the Coalition for a Democratic Workplace. Since that report, an amicus brief supporting certiorari but disagreeing with the D.C. Circuit was filed by the Constitutional Accountability Center, which describes itself as a “think tank, public interest law firm, and action center.” In addition, Professor Victor Williams of Catholic University’s Columbus School of Law filed an amicus brief supporting certiorari but arguing that the court should find that a recess appointment challenge is a nonjusticiable political question. Professor Williams has also filed similar amicus briefs in other circuit court cases that involved challenges to NLRB recess appointments.