Breaking: NLRB v. Noel Canning Affirmed; No Decision on Harris v. Quinn

Still no decision today in Harris v. Quinn.  This means it will come on Monday.  We’ve covered Harris v. Quinn extensively, including herehereherehere, and here.  SCOTUSblog’s excellent summary of the case’s history is here.

The Court did issue its ruling in NLRB v. Noel Canning, about the President’s recess appointments power.  The Court affirmed the D.C. Circuit (holding that these NLRB recess appointments were invalid) but on very narrow grounds–essentially allowing the President broad recess appointment power.  Justice Breyer’s decision was unanimous in the judgement; Justice Scalia wrote a concurrence in the judgement, which Chief Justice Roberts and Justices Thomas and Alito joined.  An explainer of the case is here.  More coverage is here and here.   The key quotation is:

We here consider  three questions about the application of this Clause.

The first concerns the scope of the words “recess of the Senate.” Does that phrase refer only to an inter-session recess (i.e., a break between formal sessions of Congress), or does it also include an intra-session recess, such as a summer recess in the midst of a session? We conclude that the Clause applies to both kinds of recess.

The second question concerns the scope of the words “vacancies that may happen.” Does that phrase refer only to vacancies that first come into existence during a recess, or does it also include vacancies that arise prior to a recessbut continue to exist during the recess? We conclude thatthe Clause applies to both kinds of vacancy.

The third question concerns calculation of the length of a “recess.” The President made the appointments here at issue on January 4, 2012. At that time the Senate was in recess pursuant to a December 17, 2011, resolution provid­ing for a series of brief recesses punctuated by “pro forma
session[s],” with “no business . . . transacted,” every Tues­day and Friday through January 20, 2012. S. J., 112th Cong., 1st Sess., 923 (2011) (hereinafter 2011 S. J.). In calculating the length of a recess are we to ignore the pro forma sessions, thereby treating the series of brief recesses
as a single, month-long recess? We conclude that we cannot ignore these pro forma sessions.

And with respect to the NLRB recess appointments at issue: “Our answer to the third question means that, when the appointments before us took place, the Senate was in the midst of a 3-day recess. Three days is too short a time to bring a recess within the scope of the Clause. Thus we conclude that the President lacked the power to make the recess appointments here at issue.”  This presumably means that decisions by these NLRB Members are invalid.

The Court also issued McCullen v. Coakley. It reversed the First Circuit, and held that the Massachusetts law providing a 35-foot buffer zone around abortion clinics violates the First Amendment.


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