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Judicial Watch • Amicus Brief: NLRB v. Canning

Amicus Brief: NLRB v. Canning

Amicus Brief: NLRB v. Canning

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Date Created:November 25, 2013

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No. 12-1281 THE
Supreme Court the United States
_________
NATIONAL LABOR RELATIONS BOARD
PETITIONER,
NOEL CANNING, DIVISION THE NOEL CORP.
RESPONDENTS.
_________ Writ Certiorari the United States
Court Appeals for the
District Columbia Circuit
_________
BRIEF JUDICIAL WATCH, INC. AND
ALLIED EDUCATIONAL FOUNDATION AMICI CURIAE SUPPORT
RESPONDENT NOEL CANNING
_________
Paul Orfanedes
Counsel Record
Ramona Cotca
JUDICIAL WATCH, INC.
425 Third Street, S.W., Ste. 800
Washington, 20024
porfanedes@judicialwatch.org
(202) 646-5172
Counsel for Amicus Curiae
LEGAL PRINTERS
LLC,
Washington 202-747-2400 legalprinters.com
TABLE CONTENTS
TABLE CONTENTS .............................................
TABLE AUTHORITIES ......................................
INTEREST AMICI CURIAE ................................1
SUMMARY THE ARGUMENT ............................2
ARGUMENT ...............................................................3
The Constitutional Text Clear
and Consistent with the
Framers Intent that Recess
Appointments are Restricted the Recess Between Senate
Sessions.............................................................3
II.
The Senate Determines Its Own
Rules and Procedures .......................................8
III.
The Inconsistent Application
Recess Appointments Irrelevant the Interpretation the Recess
Appointment Clause .......................................10
CONCLUSION ..........................................................13
TABLE AUTHORITIES
CASES
Bond United States, 564 U.S. __,
131 Ct. 2355 (2011) ...........................................5
Freytag Commissioner,
501 U.S. 868 (U.S. 1991)........................ 12,
INS Chadha, 462 U.S. 919 (1983) ..........................5
NLRB New Vista Nursing
and Rehabilitation,
719 F.3d 203 (3d Cir. 2013) ...................................7
Noel Canning NLRB,
705 F.3d 490 (D.C. Cir. 2013) ............................6,
United States Ballin, 144 U.S. (1892) .................9
CONSTITUTIONAL PROVISIONS
U.S. CONST., amend. XX, ...................................10
U.S. CONST., art. cl. 2.......................................8
U.S. CONST. art. II, 2.......................... passim
U.S. CONST. art. II, cl. .......................... passim
iii
RULES
Sup. Ct. 37.6 ...........................................................1
OTHER AUTHORITIES AND MATERIALS
157 Cong. Rec. S8783-8784
(Dec. 17, 2011) (Sen. Wyden) ............................ 7-9
157 Cong. Rec. S8789
(daily ed. Dec. 23, 2011) ......................................10
2012 Daily Comp. Pres. Docs.
No. 00003 (Jan. 2012) .......................................8
THE FEDERALIST No.
(A. Hamilton Madison) ............................. 3-4
THE FEDERALIST No. (A. Hamilton) ..................4,
THE FEDERALIST No. (A. Hamilton) ......................4
THE FEDERALIST No. (A. Hamilton) ......................4 Wood, The Creation The American
Republic 1776-1787, (1969) .......................12
Respondent Letter Br.,
New Process Steel, L.P. NLRB,
130 Ct. 2635 (2010) (No. 08-1457) .................11
INTEREST THE AMICI CURIAE
Judicial Watch, Inc. Judicial Watch nonpartisan educational organization that seeks
promote transparency, accountability and integrity government and fidelity the rule law. Judicial Watch regularly monitors significant developments the court systems and the law, pursues
public interest litigation, and files amicus curiae
briefs issues public concern. Judicial Watch
regularly files amicus curiae briefs means
advance its public interest mission and has appeared amicus curiae this Court number
occasions.
The Allied Educational Foundation AEF
nonprofit charitable and educational foundation
based Englewood, New Jersey. Founded 1964,
AEF dedicated promoting education diverse
areas study. AEF regularly files amicus curiae
briefs means advance its purpose and has
appeared amicus curiae this Court
number occasions.
Amici have interest promoting the rule
law and are concerned the President alleged Recess
appointments the National Labor Relations Board
Pursuant Supreme Court Rule 37.6, amici curiae state
that counsel for party authored this brief whole
part; and that person entity, other than amici curiae and
their counsel, made monetary contribution intended fund
the preparation and submission this brief. All parties have
consented the filing this brief; letters reflecting this
blanket consent have been filed with the Clerk. NLRB Board disrupt the deliberate balance powers intended the Framers.
The issue before the Court great importance the principles secured the separation powers
that are engrained the very fabric the Constitution. Recess appointments past Presidents
political whims have created confusion; however,
these past abuse are irrelevant because the text
clear its meaning. The recess appointment
process exceeds political interest any one administration and requires application consistent with
the Framers intent that the Senate act constitutional check the President power appoint.
SUMMARY THE ARGUMENT
The President alleged Recess appointments
the NLRB are unconstitutional for the primary
reason that the Senate was session the time
the purported appointments. The Senate alone can
determine when will hold session conformity
with its obligations and delegated powers the
Constitution. Its order convene the specified
dates through January 20, 2012 within its authority, and the Executive cannot deem the sessions
invalid. The principles separation powers and
checks and balances which the Constitution was
based prohibit it. Additionally, the textual interpretation Article II, and the Framers original
writings before the ratification the Constitution
demonstrate that the Recess Appointment Clause
was intended preserve the Senate advice and
consent power, rather than limit it, and Recess
appointments are only appropriate during intersession recess.
ARGUMENT
THE CONSTITUTIONAL TEXT CLEAR
AND CONSISTENT WITH THE FRAMERS 
INTENT THAT RECESS APPOINTMENTS
ARE RESTRICTED THE RECESS
BETWEEN SENATE SESSIONS.
The Framers debated the appointment power
the constitutional convention, and what checks and
balances should include, any. their effort
persuade ratification the Constitution, the Framers explained their intent form government
checks and balances. framing government which
administered men over men, the great
difficulty lies this: you must first enable the government control the governed; and the next place oblige
control itself. dependence the people
is, doubt, the primary control the
government; but experience has taught
mankind the necessity auxiliary precautions. This policy supplying, opposite and rival interests, the defect
better motives, might traced through
the whole system human affairs, private well public. see particularly displayed all the subordinate
distributions power, where the constant
aim divide and arrange the several
officers such manner that each
may check the other that the private interest every individual may
sentinel over the public rights.
(emphasis added) The Federalist No. (A. Hamilton Madison). The Framers regard for checks
and balances was similarly evident the construction the appointment powers contained section Article II. The ordinary power appointment confined the President and Senate jointly, and
can therefore only exercised during the session
the Senate. The Federalist No. (A. Hamilton).
Alexander Hamilton, who vigorously defended the
cause energetic executive, asked [t]o
what purpose then require the co-operation the
Senate? The Federalist (A. Hamilton); The
Federalist No. (A. Hamilton). further explained: would excellent check upon
spirit favoritism the President, and
would tend greatly prevent the appointment unfit characters from State
prejudice, from family connection, from
personal attachment, from view
popularity. addition this, would efficacious source stability the
administration.
The Federalist (A. Hamilton).
Hence, the question constitutionality the
President purported Recess appointments the
NLRB surpasses the interest few appointments the Board. The stakes are high the public,
well the structural principles separation
powers when presidential appointments attempt
eliminate the constitutional checks and balances
established the appointment clause. the Court
noted Freytag Commissioner, [t]he structural
interests protected the Appointments Clause are
not those any one branch Government but the
entire Republic. 501 U.S. 868 (U.S. 1991); see also
INS Chadha, 462 U.S. 919, 942 (1983); Bond
United States, 564 U.S. __, 131 Ct. 2355, 2365
(2011). The President purported Recess appointments, despite the Senate unanimous agreement
meet every three days, disturb the constitutional
checks that were deliberately inserted the Framers the Appointments Clause.
The Constitution defines the President appointment power follows Section Article II.
[The President] shall nominate, and
and with the Advice and Consent the
Senate, shall appoint Ambassadors and
all other Officers the United States,
whose Appointments are not herein otherwise provided for
The President shall have Power fill
all Vacancies that may happen during the
Recess the Senate, granting Com-
mission which shall expire the End
their next session.
U.S. Const., Article II, clauses 2-3.
Consistent with Alexander Hamilton discourse the benefits having constitutional check
the Executive appointment power, the Senate
granted advice and consent power presidential
appointments.
The Recess Appointment Clause
further provides limitation the President
appointment power temporary commissions for
vacancies that happen during the Recess and which
shall expire the End their next session. The
plain meaning and constitutional history examined
through the Framers writings the appointment
process make apparent that the Framers intended preserve the Senate advice and consent power
the appointment process confining the Executive
authority make temporary appointments during
inter-session recesses only.
The U.S. Court Appeals for the District Columbia Circuit correctly held that the text the
Recess Appointment Clause clear: Recess appointments are only permissible during Recess
between Senate sessions. Noel Canning, etc.,
NLRB, al., 705 F.3d 490, 507-08 (D.C. Cir. 2013)
(cert. granted, 2013 U.S. LEXIS 4876 (U.S., June 24,
2013). The Court correctly pointed the significant
distinction the Framers use the Recess, 
rather than recess. Then, now, the word the 
was and definite article noting particular
thing. Id. 500-01, 503. matter cold,
unadorned logic, makes sense adopt the
Board proposition that when the Framers said the
Recess, what they really meant was recess. Id. 500. The use definite article limits the validity temporary appointments Commissions
specific type recess that follows each Senate
session. The Court interpretation correct,
well consistent with the Framers intent.
Alexander Hamilton wrote that the intent the
recess appointment power was nothing more
than supplement for the other, for the purpose
establishing auxiliary method appointment,
cases which the general method was inadequate. 
The Federalist No. (A. Hamilton). evident
the supplemental power was practical approach
responding vacancies that arise during the Senate recess between sessions. the words the
U.S. Court Appeals the Third Circuit, the
purpose for supplementing the appointment clause
with the recess-appointment clause preserve
the Senate advice-and-consent power limiting
the president unilateral appointment power, not
expand it. NLRB New Vista Nursing and Rehabilitation, 719 F.3d 203, 229 (3d Cir. 2013).
The President purported Recess appointments the NLRB were not made during any Senate
recess, and certainly not during recess between
sessions. The Senate ended its first session the
112th Congress December 30, 2011 and began the
second session January 2012. 157 Cong. Rec.
S8783-8784 (Dec. 17, 2011) (Sen. Wyden). Even
the Senate were considered recess, the
President temporary appointments were made
January 2012, after the Senate began the new
session. Id. The political agenda that evident
the President statement will not take for
answer, led unconstitutional appointments without the Senate advice and consent when the Senate
was not Recess. 2012 Daily Comp. Pres. Docs. No.
00003, (Jan. 2012). This type party politics
not new, was observed the Court Freytag
Commissioner, and therefore commands constitutional accountability preserve the limitations
placed the President. 501 U.S. 883-884.
II.
THE SENATE DETERMINES ITS
OWN RULES AND PROCEDURES.
The President supposed Recess appointments
are unconstitutional because the Senate was
session the time they were made. Section
Article empowers each House Congress determine the rules its proceedings. U.S. CONST.,
Article Clause
The Constitution empowers each house
determine its rules proceedings. may
not its rules ignore constitutional restraints violate fundamental rights,
and there should reasonable relation
between the mode method proceeding established the rule and the result
which sought attained. But within
these limitations all matters method
are open the determination the
house, and impeachment the
rule say that some other way would
better, more accurate even more just. objection the validity rule
that different one has been prescribed
and force for length time. The
power make rules not one which once
exercised exhausted. continuous
power, always subject exercised
the house, and within the limitations
suggested, absolute and beyond the challenge any other body tribunal. 
United States Ballin, 144 U.S. 4-5 (1892). December 17, 2011, the Senate decided unanimously convene every three days from December
17, 2011 January 20, 2012, including on, but not
limited to, January 2012 and January 2012.
157 Cong. Rec. S8783-84. That same day, the
Senate also unanimously agreed conclude the first
session the 112th Congress December 30, 2011
and start its second session January 2012. Id.
All these decisions and actions taken the Senate its December 17, 2011 Order were within its
discretion and authority make under the power
delegated Article the Constitution.
The President declaration that these sessions
were invalid disregards the Senate authority
determine and administer its own procedures, including when will recess and how will conduct
its business. Furthermore, threatens the fundamental principle separation powers embedded Constitution. The President position that the
Senate cannot decide for itself when Recess takes
places dangerous supposition that the Executive
Branch may interfere with determine what business suffices for the Senate session. For
example, during one session, December 23, 2011,
the Senate passed and the President signed two
month extension the reduced payroll tax, unemployment insurance, TANF and the Medicare payment fix. 157 Cong. Rec. S8789 (daily ed. Dec. 23,
2011). Additionally, the session held January
2012 constituted the meeting required the Twentieth Amendment. U.S. Const., amend. XX, The
Constitution does not afford the authority the
Executive Branch determine what type business sufficient declare the Senate recess
how should conduct its business. Only the Senate
can declare itself session and when whether
will recess its delegated powers. Therefore, the
Senate declined recess and convene through
January 20, 2012, the so-called Recess appointments
are invalid.
III. THE INCONSISTENT APPLICATION RECESS APPOINTMENTS
IRRELEVANT THE INTERPRETATION THE RECESS APPOINTMENT CLAUSE.
Petitioner, NLRB, relies part appointments previous executives during intra-session recesses support its argument that they are constitutional.
However, the Board cannot deny the dilemma presented the inconsistent interpretations prior
Presidents, nor can deny the lack such temporary appointments for the least the first eighty
(80) years following the Constitution ratification.
Brief for the Petitioner, 21. best, the Board may
argue that the intra-session appointments were
more predominately made modern history.
While the historical application Recess appointments irrelevant because the text clear,
brief summary the inconsistent application
evidence how prior appointments political
whim have created confusion and uncertainty. For
almost 100 years following the Constitution ratification, Presidents conformed the constitutional
text and did not make intra-session appointments.
Id. While Petitioner points some intra-session
appointments made 1867 and 1868, could not
deny that the President took the opposite view
1901 when Attorney General Knox concluded that
the Recess Appointment Clause did not include
intra-session recesses. Again 1921, the view
the President changed permit intra-session recess
appointments, but only when the Senate adjourned
for more than three days. Id. 21-24. fact, the
President had taken the same position when then
Solicitor Elena Kagan letter was filed with the
Supreme Court behalf Respondent New
Process Steel, L.P. NLRB stating that the Senate
may act foreclose the [recess appointment] option declining recess and convening pro forma
sessions every three days. See Respondent Letter
Br., New Process Steel, L.P. NLRB, 130 Ct. 2635
(2010) (No. 08-1457). Yet now, the President has
taken even more extreme position sharp contrast his earlier 2010 view that recess appoint-
ments are permissible while the Senate convenes
every three days.
The constitutional interpretation the validity
Recess appointments cannot based the inconsistent past intra-session appointments politically
motivated one side the aisle another. The
Framers recognized the risk political manipulation:
[M]anipulation official appointments
had long been one the American revolutionary generations greatest grievances
against executive power, see Wood,
The Creation The American Republic
1776-1787, (1969) (Wood), because
 the power appointment offices was
deemed the most insidious and powerful
weapon eighteenth century despotism. 
Id., 143. Those who framed our Constitution addressed these concerns
carefully husbanding the appointment
power limit its diffusion. Although the
debate the Appointments Clause was
brief, the sparse record indicates the
Framers determination limit the distribution the power appointment.
 The Framers understood, however, that limiting the appointment power, they
could ensure that those who wielded
were accountable political force and the
will the people.
Freytag, 501 U.S. 883-884. Consistent with the
Framers intent and the Court statement above,
Recess appointments must conform the constitutional limitations order preserve the structural
principles secured the separation powers. The
alternative the same unpredictability and inconsistent application and susceptibility political
maneuvering and manipulation.
CONCLUSION
For the foregoing reasons, amici respectfully request that the Court affirm the decision the United States Court Appeals for the District Columbia Circuit.
Respectfully submitted,
Paul Orfanedes
Counsel Record
Ramona Cotca
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
porfanedes@judicialwatch.org
Counsel for Amici Curiae
November 25, 2013



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