National Labor Relations Board v. Noel Canning
| Docket No. | Op. Below | Argument | Opinion | Vote | Author | Term |
|---|---|---|---|---|---|---|
| 12-1281 | D.C. Cir. | Jan 13, 2014 | Jun 26, 2014 | 9-0 | Breyer | OT 2013 |
Holding: The Recess Appointments Clause authorizes the president to fill any existing vacancy during any recess " whether occurring during or between sessions of Congress " of sufficient length. However, for purposes of the clause, the Senate is in session whenever it indicates that it is, as long as " under its own rules " it retains the capacity to transact Senate business.
Judgment: Affirmed, 9-0, in an opinion by Justice Breyer on June 26, 2014. Justice Scalia filed an opinion concurring in the judgment, which Chief Justice Roberts, Justice Thomas, and Justice Alito joined.
SCOTUSblog Coverage
- Political consequences of NLRB v. Noel Canning (Kali Borkoski, July 15, 2014)
- Symposium: The majority opinion should be all the Senate really needs (John Neiman, June 27, 2014)
- Symposium: Justice Breyers dowsing rod finds a limit to the Recess Appointments Clause (Trevor Burrus, June 27, 2014)
- Symposium: Noel Canning and the hesitant Court (Adam Winkler, June 27, 2014)
- Symposium: A win for the Constitutions text and history (Brianne Gorod, June 27, 2014)
- Symposium: What divides the Court, and what unites it (William Baude, June 27, 2014)
- Can a president (with a little help from one senator of his party) circumvent most of the Courts limitation on the recess appointments power? (Tom Goldstein, June 27, 2014)
- Symposium: Custom and textual meaning Chevron deference should not be allowed to manufacture constitutional ambiguity (Richard A. Epstein, June 26, 2014)
- Court strikes down recess appointments: In Plain English (Amy Howe, June 26, 2014)
- A "view" from the Court: Some surprises in penultimate session (UPDATED) (Mark Walsh, June 26, 2014)
- Opinion analysis: Pragmatism triumphs over formalism (Lyle Denniston, June 26, 2014)
- Recess appointments power in jeopardy, but to what extent? Today's argument in Plain English (Amy Howe, January 13, 2014)
- Argument recap: An uneasy day for presidential power (Lyle Denniston, January 13, 2014)
- Analysis: The original understanding of the presidents recess appointment power (Carl Cecere, January 13, 2014)
- Defining the scope of the President's recess appointment powers: In Plain English (Amy Howe, January 12, 2014)
- Argument preview: The nomination wars (Lyle Denniston, January 11, 2014)
- Court bypasses RICO test case (Lyle Denniston, December 9, 2013)
- Symposium: The Constitutions Framers gave the president recess appointment power to foster functional government (Elizabeth Wydra, July 17, 2013)
- Symposium: How would Edward M. Kennedy have approached the Noel Canning case? (James Flug, July 16, 2013)
- Symposium: Listen to the Senates recess bell (Gerard Magliocca, July 16, 2013)
- Symposium: Respecting the wisdom of the past vs. inviting new games to play at recess (Edward Hartnett, July 16, 2013)
- Symposium: The challengingly uncategorizable Recess Appointments Clause (Michael Herz, July 15, 2013)
- Symposium: Noel Canning opens the door (Victor Williams, July 15, 2013)
- Symposium: The originalist and non-originalist cases for following the original meaning of the Recess Appointments Clause (Mike Rapapport, July 15, 2013)
- The President's powers case, made simple (Lyle Denniston, July 11, 2013)
- U.S.: Limit appointment power review (Lyle Denniston, June 7, 2013)
- Recess appointments case set (Lyle Denniston, June 4, 2013)
- Broad limit on appointments urged (Lyle Denniston, May 23, 2013)
- Academic round-up: Wrestling with recess appointments (Amanda Frost, May 9, 2013)
- Recess appointments defended (Lyle Denniston, April 25, 2013)
- President's appointment power curbed (UPDATED) (Lyle Denniston, January 25, 2013)
| Date | Proceedings and Orders |
|---|---|
| 04/25/2013 | Petition for a writ of certiorari filed. (Response due May 28, 2013) |
| 05/13/2013 | Brief of respondent International Brotherhood of Teamster Local 760 in support filed. |
| 05/23/2013 | Brief of respondent Noel Canning filed. |
| 05/23/2013 | Brief amicus curiae of Coalition for a Democratic Workplace filed. |
| 05/28/2013 | Brief amicus curiae of Constitutional Accountability Center filed. |
| 05/28/2013 | Brief amicus curiae of Professor Victor Williams filed. |
| 05/28/2013 | Brief amici curiae of Senate Republican Leader, Mitch McConnell, et al. filed. |
| 06/04/2013 | DISTRIBUTED for Conference of June 20, 2013. |
| 06/06/2013 | Reply of petitioner National Labor Relations Board filed. (Distributed) |
| 06/24/2013 | Petition GRANTED In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: Whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions. |
| 07/12/2013 | The time to file the joint appendix and petitioner's brief on the merits is extended to and including September 13, 2013. |
| 07/12/2013 | The time to file respondents' brief on the merits is extended to and including November 18, 2013. |
| 08/26/2013 | Application (13A209) to exceed the word limits of the parties briefs on the merits, submitted to The Chief Justice. |
| 08/28/2013 | Application (13A209) granted by The Chief Justice to exceed the word limits of the parties briefs on the merits. provided that each opening brief does not exceed 18,000 words, and that the reply brief does not exceed 7,200 words. |
| 09/03/2013 | Consent to the filing of amicus curiae briefs in support of either party or neither party received from counsel for the respondent International Brotherhood of Teamsters Local 760. |
| 09/12/2013 | Consent to the filing of amicus curiae briefs, in support of either party or neither party, received from counsel for petitioner National Labor Relations Board. |
| 09/13/2013 | Brief of petitioner NLRB filed. |
| 09/13/2013 | Motion to dispense with printing the joint appendix filed by petitioner NLRB. |
| 09/13/2013 | Brief of respondent International Brotherhood of Teamsters Local 760 in support of the petitioner filed. |
| 09/20/2013 | Brief amicus curiae of The Brennan Center for Justice filed. |
| 09/20/2013 | Brief amicus curiae of Constitutional Accountability Center filed. |
| 09/20/2013 | Brief amicus curiae of Professor Victor Williams filed. |
| 10/07/2013 | Motion to dispense with printing the joint appendix filed by petitioner GRANTED. |
| 11/04/2013 | SET FOR ARGUMENT ON Monday, January 13, 2014. |
| 11/05/2013 | CIRCULATED |
| 11/12/2013 | Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for Noel Canning. |
| 11/18/2013 | Brief of respondent Noel Canning filed. (Distributed) |
| 11/19/2013 | Record from the U.S.C.A. District of Columbia Circuit is electronic and located on PACER. |
| 11/21/2013 | Brief amicus curiae of Landmark Legal Foundation filed. |
| 11/22/2013 | Brief amicus curiae of Southeastern Legal Foundation filed. (Distributed) |
| 11/25/2013 | Administrative record received from the National Labor Relations Board. (1Box) |
| 11/25/2013 | Brief amici curiae of Senate Parliamentary Experts Robert B. Dove and Martin B. Gold filed. (Distributed) |
| 11/25/2013 | Brief amicus curiae of Speaker of the United States House of Representatives, John Boehner filed. |
| 11/25/2013 | Brief amici curiae of Coalition for a Democratic Workplace, et al. filed. (Distributed) |
| 11/25/2013 | Brief amicus curiae of Daycon Products Company, Inc. filed. (Distributed) |
| 11/25/2013 | Brief amici curiae of Citizens United, et al. filed. (Distributed) |
| 11/25/2013 | Brief amicus curiae of International Longshore and Warehouse Union filed. (Distributed) |
| 11/25/2013 | Brief amicus curiae of American Civil Rights Union filed. (Distributed) |
| 11/25/2013 | Brief amici curiae of Constitutional Law Scholars filed. (Distributed) |
| 11/25/2013 | Brief amicus curiae of Cato Institute filed. (Distributed) |
| 11/25/2013 | Brief amici curiae of Originalist Scholars filed. (Distributed) |
| 11/25/2013 | Brief amici curiae of Political Scientists and Historians filed. (Distributed) |
| 11/25/2013 | Brief amicus curiae of Council on Labor Law Equality filed. (Distributed) |
| 11/25/2013 | Brief amici curiae of Alabama, et al. filed. (Distributed) |
| 11/25/2013 | Brief amicus curiae of Independence Institute filed. (Distributed) |
| 11/25/2013 | Brief amici curiae of Judicial Watch, Inc., et al. filed. (Distributed) |
| 11/25/2013 | Brief amicus curiae of National Federation of Independent Business Small Business Legal Center filed. (Distributed) |
| 11/25/2013 | Brief amicus curiae of Mountain States Legal Foundation filed. (Distributed) |
| 11/25/2013 | Brief amici curiae of Brian W. Bulger, et al. filed. (Distributed) |
| 11/25/2013 | Brief amici curiae of Atlantic Legal Foundation, et al. filed. (Distributed) |
| 11/25/2013 | Brief amici curiae of State National Bank of Big Spring, et al. filed. (Distributed) |
| 11/25/2013 | Brief amici curiae of Senate Republican Leader Mitch McConnell and 44 Other Members of the United States Senate filed. (Distributed) |
| 11/25/2013 | Brief amicus curiae of Professor Tuan Samahon filed. (Distributed) |
| 11/25/2013 | Motion of Senate Republican Leader Mitch McConnell and 44 Other Members of the United States Senate for leave to participate in oral argument as amici curiae, for divided argument, and for additional argument time filed. |
| 11/25/2013 | Brief amici curiae of National Right to Work Legal Defense and Education Foundation, Inc., and Jeanette Geary. filed. (Distributed) |
| 11/25/2013 | Motion of Professor Victor Williams for leave to participate in oral argument as amicus curiae and for divided argument filed. |
| 11/25/2013 | Response of Noel Canning, et al. to motion of Senate Republican Leader Mitch McConnell, et al. for leave to participate in oral argument as amici curiae, for divided argument, and for additional argument time filed. |
| 12/09/2013 | Motion of Senate Republican Leader Mitch McConnell, et al., for leave to participate in oral argument as amici curiae and for divided argument GRANTED, the time is to be divided as follows: 45 minutes for petitioner, 30 minutes for respondent Noel Canning, and 15 minutes for amici curiae Senate Republican Leader Mitch McConnell, et al., |
| 12/09/2013 | Motion of Professor Victor Williams for leave to participate in oral argument as amicus curiae and for divided argument DENIED. |
| 12/13/2013 | Letter received from counsel of record for amicus for The Brennan Center for Justice. (Distributed). |
| 12/18/2013 | Reply of petitioner National Labor Relations Board filed. (Distributed) |
| 12/18/2013 | Reply of respondent International Brotherhood of Teamsters Local 760 in support of petitioner filed. (Distributed) |
| 01/13/2014 | Argued. For petitioner: Donald B. Verrilli, Jr., Solicitor General, Department of Justice, Washington, D. C. For respondents: Noel J. Francisco, Washington, D. C.; and Miguel A. Estrada, Washington, D. C. (for Senate Republican Leader Mitch McConnell, et al., as amici curiae). |
| 06/26/2014 | Adjudged to be AFFIRMED. Breyer, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, in which Roberts, C. J., and Thomas and Alito, JJ., joined. |
| 07/28/2014 | JUDGMENT ISSUED. |
| 07/28/2014 | Record returned for U.S.C.A. for District of Columbia Circuit. |
Issue: (1) Whether the President”s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate; (2) whether the President”s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess; and (3) whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.