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More on Recess Appointments

Standard operating procedure in the U.S. Supreme Court is that the party who lost in the lower court asks the Court to take the case, and the party who prevailed there files a "brief in opposition" telling the Court why the case is not worth its time.

Occasionally, though, the prevailing party below joins in the request to take the case up, even though it believes the Court should affirm once it does.  The U.S. Government is the party most likely to do this, as it is uniquely hampered by having to enforce different interpretations of the law in different federal circuits.  Much more rare is such a request by a private party, but one has been filed by Noel Canning, the bottling company that prevailed in the NLRB recess appointments case.  "Respondent does not oppose certiorari because this case presents a constitutional question of extreme importance."

Noel Canning asks the Court to add an additional Question Presented to the two proposed by the Government:
The questions presented by the Government are as follows:

1. Whether the President's recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate.

2. Whether the President's recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.

Respondent proposes that the following question presented be added as well:

3. Whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.
As I noted in this post, the answer to Question 3 is "no," and it is so obviously "no" that the Court could so decide summarily.  It need not and ought not decide Questions 1 and 2 in this case.  Noel Canning's brief suggests near the end that the Supreme Court could avoid the disruptive effects that the Government warns will flow from the Court of Appeals' broad decision simply by affirming on the narrow ground.

Lyle Denniston has this post at SCOTUSblog on the filing.

The case is NLRB v. Noel Canning, No. 12-1281.

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