Mooting Noel Canning?

No, I don’t mean running practice sessions for the oral argument.  There is a story today that Senate Democrats want to change the rules to bar filibusters of executive branch nominees.  (I’m all for cloture reform, as I’ve explained many times here.)  Part of that plan (or bluff) involves the confirmation of all of the President’s nominees for the vacancies on the NLRB.  These are the same vacancies that the President filled with recess appointments last year and were declared unconstitutional by the Third and D.C. Circuits.

Here’s my question.  Suppose the Senate does confirm these people.  Can they then confirm retroactively all of the decisions made by the recess appointees?  (Since I think the recess appointees and the nominees are the same, it would be confirming their own decisions.)  If so, then that would moot the appeal from the D.C. Circuit on which the Supreme Court granted certiorari.

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4 Responses

  1. mls says:

    Well, it isn’t a question of whether they can confirm all of the decisions of the recess appointees. The only issue would relate to the unfair labor practice finding against Noel Canning. Would they need to at least go through the motions of hearing the appeal from the ALJ again (or would there even need to be a new ALJ decision)? Not sure of the answer, but I would imagine that the administration could make a strong mootness argument if it were willing to re-do the Noel Canning adjudication sufficiently.

    Now here is my question. Didn’t you sign a letter saying that the Senate could only exercise the “nuclear option” on the first day of the new Congress?

  2. Gerard Magliocca says:

    I did. Of course, a Senate rule change like that is not subject to judicial review. I wouldn’t hold my breath that they will actually change the rules. Confirming the nominees, though, is possible.

    I’m not sure what “redoing sufficiently” means. I’ll leave that to the admin law experts.

  3. Brian Clarke says:

    If I recall correctly, after New Process Steel (which held that the NLRB could not act with only 2 members and that all of its decisions with only 2 members were invalid), once the Board had a 3 member quorum, it ratified/adopted/affirmed all the actions deemed invalid by the Court. I would think something similar would occur this time around (unless no one gets confirmed to the Board until a Republican president is in office and there are no “legitimate” recess appointments).

  4. Joe says:

    fingers crossed