FedSoc Blog

Senate Republicans Get Supreme Court Argument Time in NLRB Recess Case


by Publius
Posted December 09, 2013, 1:19 PM

BLT: the Blog of Legal Times reports:

The U.S. Supreme Court on Monday granted Senate Republicans argument time on Jan. 13 when the justices hear historic debate over the constitutionality of President Barack Obama's recess appointments to the National Labor Relations Board.

As a result, the argument in NLRB v. Noel Canning will run 90 minutes instead of the usual 60. Miguel Estrada of Gibson, Dunn & Crutcher had asked the court on November 25 for additional time on behalf of his client Sen. Mitch McConnell, (R-Kentucky) and 44 other senators who object to Obama's appointments. He will have 15 minutes, in addition to the 30 minutes allotted to Noel Francisco of Jones Day, who represents the appellee Noel Canning company, a Pepsi bottler from Yakima, Washington. For balance, the court extended the government's argument time from 30 to 45 minutes, for a total of 90.

In seeking the extra time, Estrada told the court that the senators have "incomparable interest in the constitutional issues involved," and an "unmatched stake" in defending the Senate's prerogatives to establish its own procedures, including when to adjourn. The senators should be given the opportunity, Estrada said, to describe the "adverse separation-of-powers consequences of allowing the Executive to seize control of congressional procedure."

Francisco told the court he agreed with giving the senators argument time, so long as it did not cut into his allotted half hour. His side needed 30 minutes, he said, to give "a full and complete presentation of its position." . . .

In November 2013, the Federalist Society sponsored a panel discussion at its National Lawyers Convention on "Recess Appointments: Implications of Noel Canning." Participating were:

  • Mr. John Elwood, Partner, Vinson & Elkins LLP
  • Mr. Noel J. Francisco, Partner, Jones Day
  • Prof. John N. Raudabaugh, Reed Larson Professor of Labor Law, Ave Maria School of Law; former member, National Labor Relations Board and Staff Attorney, National Right To Work Legal Defense Foundation
  • Ms. Elizabeth B. Wydra, Chief Counsel, Constitutional Accountablity Center
  • Moderator: Hon. Raymond M. Kethledge, United States Court of Appeals, Sixth Circuit

You can watch a video of the event here.




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