by Deepak Gupta
Earlier today, Solicitor General Don Verrilli filed the government's petition to the Supreme Court, challenging the D.C. Circuit's Noel Canning decision. (Background: There's been a lot of blogging here about Noel Canning,
which invalidated President Obama's intersession recess appointments to
the National Labor Relations Board and thereby threatened the validity
of his simultaneous appointment of Richard Cordray to be Director of the
Consumer Financial Protection Bureau. Brian recently posted on a
Congressional Research Service report discussing the decision's
implications here. On the day of the decision, I posted
about the "de facto officer" doctrine and other reasons to be wary of some of the most
sweeping claims regarding the decision's implications for the CFPB. I've
also been commenting elsewhere–yesterday at NPR's Marketplace here and at Talking Points Memo here.)
The SG's petition has been expected for months now and has been previewed in court of appeals briefing, but it still makes for a good read. It's a powerful and compelling piece of advocacy, combining rigorous historically-grounded arguments with a plea based on the pressing practical need for the Supreme Court's intervention. The petition has an unusually large number of Justice Department lawyers on the cover.
The CFPB isn't mentioned explicitly, but the petition makes clear that that the decision "threatens a significant disruption of the federal government’s operations" and that its effects can "be expected to extend to a wider range of federal agencies and offices."
Here's a quotation from the petition that provides an executive summary of the government's arguments:
The court of appeals’ decision would dramatically curtail the scope of the President’s authority under the Recess Appointments Clause. Before that decision, Executive practice had long been predicated on the understanding that the Recess Appointments Clause authorizes the President to fill vacancies that exist during a recess of the Senate, regardless of whether the recess occurs between two enumerated sessions of Congress or during a session, and regardless of when the vacancies first arose. The decision below also conflicts with the decisions of three other federal courts of appeals and with the central objects of the Recess Appointments Clause. It would deem invalid hundreds of recess appointments made by Presidents since early in the Nation’s history. It potentially calls into question every order issued by the National Labor Relations Board since January 4, 2012, and similar reasoning could threaten past and future decisions of other federal agencies.
I would be quite surprised if the Court does not grant the petition and set the case for argument early in the next term. Given the splits and the enormous practical implications, it seems like that rare case that virtually comes to the Court with a presumption of a grant.
Lyle Denniston has a summary at SCOTUSblog. Nothing yet at the Volokh Conspiracy, but John Elwood is an expert on the subject and I wouldn't be surprised if he posts something worth reading soon. Stay tuned.
I agree that the Supreme Court is likely to grant Certiorari — it’s a compelling case with significant implications for the balance of power between the Executive Branch and the Senate. But based on the wild rantings from the Liberal Blogosphere and the liberal Legal Academia that the D.C. Circuit decision was so patently bad, I’m getting a feeling that this is deja vu all over again. When the Constitutional challenge to PPACA went up, the rantings from Legal Academia were all in line — these folks were absolutely certain that there was no non-frivolous argument for the unconstitutionality of the Individual Mandate in PPACA, and just as certain that the challenges to the expansion of Medicaid were “off the wall”, “outside the mainstream”, “totally frivolous”, and “just plain crazy.” Yet when the Supreme Court proved all of them wrong, there was not a single whisper of apology or explanation. Indeed, some continued to preach as if the Ginsberg Dissent was the controlling opinion! Frankly, I think the D.C. Circuit got it right, though it over-reached in opining on whether or not the vacancy had to first arise during the recess — that point was simply unnecessary to the ruling and was just dicta. Will there be wailing and knashing of teeth when SCOTUS affirms (at least in part) the D.C. Circuit? Or more deathly silence from those who will claim that this is a slam dunk for the President?