NLRB v. Canning (12-1281)
argument 12-1281NLRB v. Canning
Supreme Court of the United States
1h 33m
7 speakers
8 chapters
transcribed 4 days ago
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What constitutional issue does the NLRB v. Canning case raise about recess appointments?
We'll hear argument first this morning in case twelve twelve eighty one, the National Labor Relations Board versus Noel Canning. General Verrilly.
Mr Chief Justice, and may it please the Court The interpretation of the recessed appointments clause that respondent urges would repudiate the constitutional legitimacy of thousands of appointments by presidents going back to George Washington. And going forward, it would diminish presidential authority in a way that is flatly at odds with the constitutional structure the framers established. Respondent simply has not advanced the compelling case that would be needed to strip presidents of their traditional. additional authority to make appointments during intracession recesses and to fill pre existing vacancies. You
You say that it would repudiate the constitutionality of appointments. You don't suggest that those the actions of those appointees would be invalid going back however far you want to go back, do you?
Uh no, but they no, I don't, Mr. Chief Justice. But it certainly would repudiate the legitimacy of those appointments.
How did it how did it affect the how many board decisions? uh will have to be redone. Or how did how is Is the board coping with that problem?
Well there are many dozens of board decisions and perhaps many hundreds of board decisions that are under a cloud as a result of the D C Circuit's ruling in this case. And Uh so The board will have a considerable amount of work to do if the the D C Circuit's decision were to be affirmed. Now there would be issues about waiver, there will be issues about whether there uh there is uh authority sufficient to justify what the board did under other circumstances or apparent authority arguments. So so that would all have to be sorted out with respect to the board's rules. What would
happen if under the reasoning of this case, what would happen to the decisions of recess appointed judges?
I think that would be a very serious question, Justice Sotomy, and it and I think it does point up the the difficulty with the position respondent
is urging. Surely you would you would argue the de facto officer doctrine. Yes we would. Of course you would. Yes we would have applied that in innumerable cases. Nonetheless but you don't really think we're going to go back and rip out every decision made. Well I would certainly
hope not, Your Honor, but it certainly casts a serious cloud over the legitimacy of all of those actions. And it does point up the fact that the recessed power including appointments during intracession recesses and to fill preexisting vacancies has been used to fill offices of great importance.
I have a very stark question. Suppose I agree with the Court of Appeals that the only The only interpretation uh of of the Constitution uh is that the vacancy must have arisen during the recess. J just by hypothesis. I agree with that. Okay? Uh. What do you do when there is a practice that That flatly contradicts A clear text of the Constitution. Which which of the two prevails?
So if
if you ignore the Constitution
But I don't think often enough uh its meaning changes. But Your Honor, of course, in this situation, the meaning of the clause with respect to the timing of of the vacancy has been a matter of contention since the first days of the questioning my
hypothesis. You have to accept my hypothesis. I think that the text is clearly against you. Uh
The practice has has started with George Washington and has has worked through the
Yes or no? Does the practice prevail over the clear text?
Constitution. You're questioning my my hypothesis against. I am assuming a clear text of the Constitution. and a practice that is is contrary to it. It's extremely
Unlikely that would arise if the text were so free of doubt. But I have no I'm answering it. I think I've already answered it once, Justice, but I'll answer it again. The answer is I think given this the practice going back to the founding of the Republic, the practice should govern. But we don't have that here. This provision has been subject to contention as to its meeting since the
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Chapters
8 chapters
1
What constitutional issue does the NLRB v. Canning case raise about recess appointments?
0:00–11:36
2
How do the parties define the meaning of “vacancy may happen” in the Constitution?
11:36–22:24
3
What historical practices do the respondents cite to support a broad recess‑appointment power?
22:24–33:10
4
How does the government argue that pro‑forma sessions should limit the President’s recess‑appointment authority?
33:10–44:16
5
What is the significance of the 20th Amendment and the adjournment clause to this dispute?
44:16–54:49
6
How do the parties propose using the Pay Act and other statutes to interpret the “happens” language?
54:49–1:08:03
7
What practical consequences would a ruling for the respondents have on past NLRB decisions?
1:08:03–1:22:07
8
What final arguments do the Solicitor General and the government make about preserving the separation‑of‑powers balance?
1:22:07–1:33:33