DOJ Responds to the D.C. Circuit’s “Noel Canning” Recess-Appointment Decision

We've posted many times about the D.C. Circuit's Noel Canning decision, which held that three putative recess appointments made by President Obama to the National Labor Relations Board were not proper recess appointments. Therefore, the court ruled, the appointments were invalid because they did not go through the Constitution's normal appointments process — presidential nomination and approval by the Senate.

The Department of Justice has now responded to the decision for the first time in a 20-page letter brief filed in the Third Circuit. Here's a pargraph from that letter summarizing the Administration's position:

The Noel Canning decision conflicts with nearly two centuries of Executive Branch practice and the decisions of three other Courts of Appeals, two of them sitting en banc. Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004) (en banc), cert. denied, 544 U.S. 942 (2005); United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) (en banc), cert. denied, 475 U.S. 1048 (1986); United States v. Allocco, 305 F.2d 704 (2d Cir. 1962), cert. denied, 371 U.S. 964 (1963). Noel Canning’s constitutional conclusions are inconsistent with the constitutional text; they conflict with historical practices and usages which the court did not address; they are at odds with the settled understandings shared by the Executive and Legislative Branches; and they threaten a serious disruption of the separation of powers.

The Blog of the Legal Times has this report.

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