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JW Amicus Brief (filed)

JW Amicus Brief (filed)

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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 
 
TABLE CONTENTS 
 
 
TABLE CONTENTS ............................................. 
 
TABLE AUTHORITIES ...................................... 
 
INTEREST AMICI CURIAE ................................ 
 
SUMMARY THE ARGUMENT ............................ 
 
ARGUMENT ............................................................... The Constitutional Text Clear 
and Consistent with the 
Framers Intent that Recess 
Appointments are Restricted the Recess Between Senate 
Sessions ............................................................. 
 
II. The Senate Determines Its Own 
Rules and Procedures ....................................... 
 
III. The Inconsistent Application 
Recess Appointments Irrelevant the Interpretation the Recess 
Appointment Clause ....................................... 
 
CONCLUSION .......................................................... 
  
TABLE AUTHORITIES 
 
CASES      PAGE 
 
Bond United States, 564 U.S. __, 
131 Ct. 2355 (2011)  ........................................... 
 
Freytag Commissioner,  
501 U.S. 868 (U.S. 1991)........................ 12, 
 
INS Chadha, 462 U.S. 919 (1983) .......................... 
 
NLRB New Vista Nursing 
 and Rehabilitation,  
719 F.3d 203 (3d Cir. 2013) ................................... 
 
Noel Canning NLRB, 
705 F.3d 490 (D.C. Cir. 2013) ............................ 
 
United States Ballin, 144 U.S. (1892) ................. 
 
 
CONSTITUTIONAL PROVISIONS  
 
U.S. CONST., amend. XX, 2 ................................... 
 
U.S. CONST., art. 5, cl. ....................................... 
 
U.S. CONST. art. II,  .......................... passim 
 
U.S. CONST. art. II,  cl. .......................... passim 
  
RULES 
 
Sup. Ct. 37.6 ........................................................... 
 
 
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)  ...................................... 
 
2012 Daily Comp. Pres. Docs. 
No. 00003 (Jan. 2012)  ....................................... 
 
THE FEDERALIST No. 
 (A. Hamilton Madison)  ............................. 3-4 
 
THE FEDERALIST No. (A. Hamilton)  .................. 
 
THE FEDERALIST No. (A. Hamilton)  ...................... 
 
THE FEDERALIST No. (A. Hamilton)  ...................... Wood, The Creation The American 
Republic 1776-1787, (1969)  ....................... 
 
Respondents Letter Br.,  
New Process Steel, L.P. NLRB,  
130 Ct. 2635 (2010) (No. 08-1457)  ................. 
 
INTEREST THE AMICI CURIAE1 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.   
 
Judicial Watch, Inc. (Judicial Watch) non-partisan educational organization that seeks promote transparency, accountability and integrity government and fidelity the rule law.  Judi-cial Watch regularly monitors significant develop-ments 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 Presidents alleged Recess appointments the National Labor Relations Board 
(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 Constitu-tion.  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 admin-istration and requires application consistent with the Framers intent that the Senate act consti-tutional check the Presidents power appoint. 
 
SUMMARY THE ARGUMENT 
 
The Presidents 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 author-ity, 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 interpre-tation Article II, 2 and the Framers original writings before the ratification the Constitution demonstrate that the Recess Appointment Clause was intended preserve the Senates advice and consent power, rather than limit it, and Recess 
appointments are only appropriate during inter-session 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 Fram-ers explained their intent form government checks and balances. framing government which administered men over men, the great difficulty lies this: you must first ena-ble the government control the gov-erned; 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 pre-cautions.  This policy supplying, op-posite and rival interests, the defect better motives, might traced through the whole system human affairs, pri-vate well public. see particu-larly 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 pri-vate interest every individual may sentinel over the public rights. 
 
(emphasis added)  The Federalist No. (A. Hamil-ton Madison).  The Framers regard for checks and balances was similarly evident the construc-tion 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 ex-plained: would excellent check upon spirit favoritism the President, and would tend greatly prevent the ap-pointment 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 Presidents 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 Presidents purported Recess appoint-ments, despite the Senates unanimous agreement meet every three days, disturb the constitutional checks that were deliberately inserted the Fram-ers the Appointments Clause. 
 
The Constitution defines the Presidents ap-pointment power follows Section Article II.   
 
[The President] shall nominate, and and with the Advice and Consent the Senate, shall appoint Ambassadorsand all other Officers the United States, whose Appointments are not herein oth-erwise 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 Hamiltons discourse the benefits having constitutional check the Executives appointment power, the Senate granted advice and consent power presidential appointments.  The Recess Appointment Clause further provides limitation the Presidents 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 Senates advice and consent power the appointment process confining the Executives authority make temporary appointments during inter-session recesses only. 
 
The U.S. Court Appeals for the District Co-lumbia Circuit correctly held that the text the Recess Appointment Clause clear: Recess ap-pointments 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 a recess.  Then, now, the word the was and definite articlenoting particular thing.  Id. 500-01, 503.  As matter cold, unadorned logic, makes sense adopt the Boards proposition that when the Framers said the Recess, what they really meant was a recess.  Id. 500.  The use definite article limits the validi-ty temporary appointments Commissions specific type recess that follows each Senate session.  The Courts interpretation correct, well consistent with the Framers intent. 
 
Alexander Hamilton wrote that the intent the recess appointment power was to 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 Sen-ates 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 to preserve the Senates advice-and-consent power limiting the presidents unilateral appointment power, not expand it.  NLRB New Vista Nursing and Rehabil-itation, 719 F.3d 203, 229 (3d Cir. 2013). 
 
The Presidents 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 Presidents temporary appointments were made January 2012, after the Senate began the new session.  Id.  The political agenda that evident the Presidents statement I will not take for answer, led unconstitutional appointments with-out the Senates 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 constitu-tional accountability preserve the limitations placed the President.  501 U.S. 883-884. 
 
II. THE SENATE DETERMINES ITS  

 OWN RULES AND PROCEDURES. 
 
The Presidents supposed Recess appointments are unconstitutional because the Senate was session the time they were made.  Section Article empowers each House Congress de-termine the rules its proceedings.  U.S. CONST., Article 5, Clause 
 
The Constitution empowers each house determine its rules proceedings. may not its rules ignore constitutional re-straints violate fundamental rights, and there should reasonable relation between the mode method proceed-ing 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 chal-lenge any other body tribunal.   
 
United States Ballin, 144 U.S. 4-5 (1892). December 17, 2011, the Senate decided unan-imously 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 Sen-ate its December 17, 2011 Order were within its  discretion and authority make under the power delegated Article the Constitution.   
 
The Presidents declaration that these sessions were invalid disregards the Senates authority determine and administer its own procedures, in-cluding when will recess and how will conduct its business.  Furthermore, threatens the funda-mental principle separation powers embedded Constitution.  The Presidents position that the Senate cannot decide for itself when Recess takes places dangerous supposition that the Executive Branch may interfere with determine what busi-ness 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, unem-ployment insurance, TANF and the Medicare pay-ment fix.  157 Cong. Rec. S8789 (daily ed. Dec. 23, 2011).  Additionally, the session held January 2012 constituted the meeting required the Twen-tieth Amendment.  U.S. Const., amend. XX, 2.  The Constitution does not afford the authority the Executive Branch determine what type busi-ness 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 pre-sented the inconsistent interpretations prior Presidents, nor can deny the lack such tempo-rary appointments for the least the first eighty (80) years following the Constitutions 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 ap-pointments 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 Constitutions ratifi-cation, 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 Kagans 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 Respondents 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 con-trast 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 incon-sistent past intra-session appointments politically motivated one side the aisle another.  The Framers recognized the risk political manipula-tion:   
 
[M]anipulation official appointments had long been one the American revo-lutionary generation's 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 Con-stitution 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 dis-tribution 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 Courts statement above, Recess appointments must conform the constitu-tional limitations order preserve the structural principles secured the separation powers.  The alternative the same unpredictability and incon-sistent application and susceptibility political maneuvering and manipulation.   
 
CONCLUSION 
 
For the foregoing reasons, amici respectfully re-quest that the Court affirm the decision the Unit-ed States Court Appeals for the District Colum-bia 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