Tuesday, February 19, 2013

Canning v NLRB - a short review

Canning v. NLRB _____ F.3d _____ (D.C. Cir. 2013) (Jan 25, 2013) a Short Review

I.  The Canning Decision

http://www.jdsupra.com/legalnews/dc-circuit-court-decision-creates-nlrb-55556/ Canning v. NLRB, ___ F.3d ___ (2013) (Jan 25, 2013) (DC Cir) has some problems.  

 The facts in the case are undisputed.  The President of the United States made appointments to the National Labor Relations Board while the Senate of the United States was in recess and in adjournment.  In order to prevent the President from making "recess" appointments, the House, which was controlled by a political party different from that which controlled the party controlling the Senate, exercised its right under the Constitution to withhold its consent to allow the Senate to adjourn for more than three days (See Article I of the US Constitution).  As a consequence, during the holiday break which extended for several weeks in December to January of 2011-12, even though the U.S. Senate had adjourned for several weeks and was in recess, technically, the Senate was in session, even though there was but one Senator or two Senators at a time present on the floor, and only every third day at that, and there was no quorum to do business, such as considering the appointment, advise and consent and confirmation of, vacant seats and appointments.

 At the time, there were hundreds of unconfirmed appointments to the Judiciary and various executive posts, and both the Senate and House were either refusing to confirm, or abdicating their constitutional duties to confirm, by this circuitous process of adjourning without adjourning, when the adjournment was a de factor adjournment.  

 A.  Lack of Justiciability

 The plaintiff-appellee below never raised the issue of constitutionality of its claims before the NLRB.  The matter was an employment law matter which was decided adversely before the NLRB, and adversely on appeal.  The constitutional claims were raised for the first time on appellate review.  

First, the constitutional issues were not raised before the NLRB, were not preserved for appeal and were not administratively exhausted.  Thus they were neither justiciable nor were they properly preserved for appellate review.  In short, they were not ripe for appellate decisions.  

 B.  Stare Decisis

Second, the 11th Circuit has already decided this issue, and squarely to the opposite, in an en banc panel, Evans v. Stephens, 407 F. 3d 1272 (2005), cert denied, ___ U.S.___ (2005).  There are many other problems with the logic, reasoning and legal precedent for this decision, too complex to take up here, but suffice it to say that whereas Evans is binding precedent and already decided that recess appointments are perfectly legal and constitutional, the DC Circuit took up the issue as if it were an issue of first impression.  

 C.  Recess is a Lesser Included Term of Adjournment

One final note;  Black's Law Dictionaries from the 1920s, makes no distinction between the meaning of the words "recess" and "adjournment" as does the DC Court of Appeals; moreover, an adjournment "sine die", according to Black's, means an adjournment without any day ever being scheduled again, meaning in effect, a dismissal of the action.  Obviously the Senate never adjourns "sine die", because they always re-convene, consequently a recess must be a lesser version of an adjournment rather than a greater form of an adjournment.  This makes sense, because kids go out for recess for twenty minutes, while school adjourns for the holidays.  According to the Canning decision, "recess" is some kind of permanent decision never to come back again for weeks at a time, while it's "adjournment" that is the temporary break.  

This not only makes no sense at all, but if you are a practicing attorney, and you have older editions of Black's Law which actually have a great deal of Latin in them, and these were the kinds of law books that the lawyers who actually wrote the Constitution had (and they were fluent in Latin and Greek, unlike most of today's Bench and Bar), they understand that an adjournment is a longer break than a recess.  A recess is when a court breaks for lunch; an adjournment is when a court breaks and plans to re-convene in two months.  Same with legislatures.  All of the Canning reasoning to the contrary, their linguistic analysis makes no sense, especially to anyone who's had more than one semester of analytic philosophy and understands that words must correspond to exact symbolic meanings on a one for one basis.  

Given all this, the Court has seriously misunderstood and misconstrued, and indeed, confused, these term of legal art in arriving at its conclusions.  

 D.  Evans is the Correct Decision

This entire line of argument was given very short shrift in Evans v. Stephens, supra, and indeed, the entire Canning decision hardly discusses Evans v. Stephens, except in passing, which is peculiar, because Evans v. Stephens is directly on all fours with this case.  In Evans, President George Bush nominated Judge Pryor to the Eleventh Circuit during a recess of the US Senate to fill a vacancy on the Eleventh Circuit Court of Appeals.  The conditions of the appointment were precisely the same as the conditions of the NLRB and Condray appintments in the instant case.  In the Evans case, the appointment of Justice Pryor was not only upheld, but the case was re-heard en banc by all twelve judges of the Eleventh Circuit, who voted overwhelmingly 10-2 to uphold the appointment, and the decision was denied review (certiorari) by the United States Supreme Court, which means that not even four Justices of the Supreme Court voted to review it.  That means at least six though the decision was fine as it was. 

The Eleventh Circuit is a southern, conservative circuit that does not get overturned much.  If ten justices on that court and six or more on the Supreme Court have already been down this road and fine nothing wrong with recess appointments, than the only reason to revisit this issue would be to tear down the entire principle of stare decisis, which is a fixed lodestar of our constitional principles, more fixed perhaps than the Constitution itself.  Stare decisis dictates that where there is an established precedent, you follow it, you do not make new law.  The Canning decision is flawed because it does not follow the bedrock principles of stare decisis and does not follow established precedent set by the appellate courts and the Supreme Court.  Instead, the Canning Court seeks to make new law, where no new laws are needed.  As such, it is a Court that seeks to legislate rather than to interpret the law.  It is not the job of the Courts to legislate; it is the jobs of the Courts to interpret the law.  When the Courts legislate rather than interpret, they exceed their Article III powers and step into the shoes of the powers of Congress' Article I powers.  This we all recognize as fundamentally contrary to the intent of the Founders as expressed in the Federalist Papers.

 E.  The Senate Was in Recess "De Facto" and It is Irrelevant When the Vacancy Arose

Another problem in this decision is that the entire section on whether a vacancy arises during the recess or exists prior to the recess, in order to be filled, is pure dicta.  Again, not raised in the NLRB, not preserved for appeal, not argued below, not exhausted, not properly preserved, not justiciable, and more pertinently, not necessary to arrive at the result in the case.  If you are going to come to a constitutional result, you need, by the rules of parsimony, the simplest possible constitutional rationale--not the most complex set of ABC fallback positions.  This argument is set forth almost as if "well, if you don't buy argument one, here's another one you might sustain upon review."  

 Moreover, it is self-evident, as the Court found in Evans, supra, that the Senate, when it adjourns for weeks at a time but technically stays open for business with one or two members appearing on the floor every third day, but lacking any quorum to do business, is in fact in recess, has adjourned, and is not present to confirm appointments.  Under such conditions, the President has the Constitutional power to make recess appointments as granted him under Article II.  

One might add here that this argument about the appointment must arise DURING the recess, was considered so specious by the Eleventh Circuit in Evans v Stephens, supra, as to not have been given serious consideration at all.  

 F.  The Canning Opinion is Itself "Canned" From Law Review Articles and Presentations by Professor Michael Rappaport of USCD Law and the Federalist Society and Borders on Plagiarism

Finally, the opinion is not itself highly original--rather, it seems to be borrowed (I hesitate to say plagiarized, but it does seem to be plagiarized) almost entirely from the works of Prof. Michael Rappaport, who teaches constitutional law at UCSD Law.  http://www.fed-soc.org/publications/author/michael-b-rappaport.  A list of his publications from the Federalist Society.  Rappaport has some theories, one of which is originalism--that you view the constitution and its words as they were written at the time they were written, and then he has a very strained view of the power over recess appointments.  He elaborated that theory back in 2003, prior to the Evans decision, so it's been floating around for many years in Federalist Society circles.  Rappaport's language and theories are repeated nearly verbatim in the Canning v. NLRB decision, which seems odd, given Justice Sentelle's reputation for erudition and originality.  

It's not a fatal flaw that the opinion is so heavily borrowed from Prof. Rappaport's work--after all, his ideas and words have been out there for going on ten years now--but it is surprising that the very words and phrases in the opinion correspond so closely to Prof. Rappaport's own words and phrases in so many places, and that the arguments are so similar and so remarkably the same.  In short, had Prof. Rappaport simply written this opinion himself, it would not have been substantially different, objectively speaking.

To this extent, the Canning opinion suffers a fatal flaw of not being intellectually honest because it is, at base, not an origional work of juridical thinking--rather, it is borrowed from a well-publicized body of work from a scholar whose work is well known to members of the Federalist Society and those who read Prof. Rappaport's formidable body of work.  Rarely if ever have we had occasion to read an opinion that so liberally borrowed from one particular academician as this Canning opinion does.  

Far from being some sort of judical masterwork, if it were an undergraduate paper, it would require a resubmission because frankly, it appears to fail the substantive tests of plagarism, academic honesty and failure to attribute source materials fundamental to all law schools, universities and honor codes, not to mention the Judicial Cannon of Ethics.  

And while it is true the Founders did not have a very good sense of plagiarism or what it was--they borrowed liberally from the Ancients and from each other--it is well to remember on this Presidents' Day that George Washington, when he cut down the cherry tree, admitted as much to his father, for he said to him, "Father, I cannot tell a lie."  

Academic dishonesty is a lie, and a lie of the worst kind.  This is also a problem with the Canning opinion.  

 G.  Problems with Historical Originalism as a Legal Philosophy

Beyond this, there are fundamental problems with the Rappaport framework which can be attacked on appeal.  Rappaport has a cramped view of appellate view--historical originalism--which neither Justic Posner, HLA Hart nor the late Ronald Dworkin accept--meaning 95% of the legal philosophy world.  Posner believes in pragmatist, Hart is a legal realist, and Dworkin has been a moral rights advocate.  Very, very few legal philosphers and scholars are of the view that historical originalism should govern our view of how to interpret the Constitution.  

Only one line of decisions has ever been interpreted this way, and that is the right to jury trial in civil cases under the Seventh Amendment.

Next, Rappaport's analysis of recess v. adjournment, as laid out in his speeches and articles, is also flawed, mainly for the reasons set forth in the Evans decision of the Eleventh Circuit, which Prof. Rappaport fails to take full account of.  Indeed, it is difficult to accept his argument that a recess is a longer break than an adjournment, or his argument that "the recess" means that a recess is longer than an adjournment.  None of this makes any sense, especially when you look at conventional Blacks Law Dictionaries, Blackstone's Commentaries, and the like.  Everyone who every practiced law knows recesses are for lunch or short breaks, while adjournments are to the next day, next week or to a another court sessions, and similarly with legislatures.  

In short, this argument of the good Professors lacks all common sense, in 1776, 1787, and now.  

 H.  Historial Originalism Proves Too Much Since the Founding of the Country Was Technically in Utter Violation of the Articles of Confederation, Including the Election of Washington in 1789 and all of the Acts of the First Two Congresses from 1789-1793.

One final problem with historical originalism, and that is their utter failure to appreciate the arguments of the anti-federalist papers.  

There was hardly a consensus on adopting the Constitution in 1787.  North Carolina rejected the Constitution before adopting it, and several states refused to select Electors for the first Presidential Election in 1789, and refused to send either Senators or Congressmen, because they had not ratified the Constitution as of yet.  

In short, if we're going to start unraveling NLRB decisions for lack of a quorum, why don't we start with the first George Washington Administration?   

The Articles of Confederation required that ALL of the states had to agree to amend the Articles for any such amendment to be effective.  The ratification clause of the US Constitution notwithstanding, the Amendment clause of the Articles surely governs.  

Consequently, the Government of the United States did not become fully legal until some time between 1790 and 1791, when the 13th and final colony adopted the Constitution and sent Congressmen and Senators.  http://en.wikipedia.org/wiki/First_United_States_Congress.

By that time, Washington had already been elected, sworn in as President, and the Congress and Senate were already making laws, including the Judiciary Act of 1789, which technically would be void and illegal for lack of a quorum, using Prof. Rappaport's historical originalism.  But Washington's election was hardly legal.

 The following laws were enacted by the first session of the Congress of 1789, which sat without Congressmen and Senators from all the States, and before North Carolina, Virginia, Rhode Island, New York and New Jersey had finished ratifying the Constitution and/or finished seating their full delegations of Congressmen and Senators:

Session 1

Held March 4, 1789 through September 29, 1789 at Federal Hall in New York City

As you can see, technically, the Department of State, the Secretary of State, the Supreme Court, the District Courts, the Circuit Courts, and all of the US Attorneys, indeed, anything under the Judiciary Act of 1789 which is the enacting legislation of Article III of the US Constitution, would technically, under the logic of the Canning decision, be unconstitutional, because there was not a full quorum to do business under the new Government.    Moreover, these acts were illegal under the Articles of Confederation as not all the states had yet ratified the amendments to the Articles in the form of the Constitution, the ratification clause of the new Constitution notwithstanding, and would not be legal until Rhode Island ratified in 1790.  Nor was Washington's election legal until he was elected in 1792 and sworn in in 1793, for the same reasons.  
Firs Speaker of the First House Frederick Augustus Conrad Muhlenberg of  PA.  Mulenberg College is named in honor of his father, Henry Melchior Muhlenberg, the first Patriarch of the Lutheran Church in America.  

Session 2

Held January 4, 1790 through August 12, 1790 at Federal Hall in New York City

[edit]


These laws also would be illegal and unconstitutional for the same reasons  

Constitutional amendments

[edit]States admitted and territories organized


Well, the Bill of Rights, technically, would be invalid, because a lawful Congress and a lawful President did not sign and approve it.  

That also takes out the 27th Amendment as well.  

The cession of territory by North Carolina would be voided as well.  

Also, since Washington's election was void, eveything that the Second Congress did would be void as well.  

To show how coercive the ratifications by North Carolina and Rhode Island were, the initial Congress and Senate did not have seats for either state.  Only after they ratified did the First Congress allot two Senate Seats to each state, and five House Seats to North Carolina and one House Seat to Rhode Island.  North Caroline had originally voted down the Constitution, which under the Articles of Confederation, would have killed the Amendment altogether, since unanimity would have been required to alter the Articles, even by replacing them with a Constitution.  What effectively occurred, was that the States that did ratify, went ahead, formed an Government of questionable legality, and then effectively coerced the remaining states to ratify, since if they did not, they would be isolated by not joining the Union.  This procedure, needless to say, does not render it legal from a historical constitutionalism view point.

However, from the standpoint of legal realism or any number of modern constitutional viewpoints, this is all ok.

The only viewpoint that would have to re-review all of this is the one found in the Canning decision and the thoughs of Prof. Rappoport, who wants to go back to 1787 and revisit everything ab initio.

 Also, we'd have to throw out Thanksgiving, since that was proclaimed by Pres. Washington pursuant to an illegitimate election in 1789.  The first proper election of a US President was 1792.  Anything Washington did before that would have been illegal for lack of a quorum, using Rappaport's logic and the logic of Canning.  http://en.wikipedia.org/wiki/United_States_presidential_election,_1788%E2%80%931789

Obviously, we can all see where this is going.  The entire first Washington Administration was, in fact, a gigantic RECESS APPOINTMENT--they went ahead and set up the government and the Presidential Election while they were waiting on the last several colonies, including New York, to ratify the Constitution.
The Map of the Election of 1789.  Note that New York, Rhode Island and North Carolina did not participate.  If this looks like a "unanimous" election of George Washington, then we have some hurricane damaged land in Long Island to sell you.  As of 1789, Rhode Island and North Carolina had not yet ratified the Constitution, and were still operating under the Articles of Confederation.  North Caroline had rejected the Constitution.  New York had only narrowly approved the Constitution, but was so bitterly divided it could not agree on electors for the election.  Was this illegal?


The entire point of the Federalist Papers was to get New York State to ratify the Constitution, which they ultimately did, but not by very much.  New York did not vote electors, did not vote for Washington in 1789, and did not send Congressmen or Senators to the new Government until sometime in 1790.  

The problem with "historicism" is sometimes, it exposes too much.  Washington's supposed "unanimous election" of 1789?  It never happened--at least four or five states never voted for him, because they had not adopted the Constitution and/or they could not agree on selecting Electors.  And there was no unanimity for the adoption of the Constitution until Washington and the Federalists had already set up the Government--only then did the remaining states come around.  That could be argued as coercive and contrary to the intent of the Articles of Confederation.  

Should we have a DC Court of Appeals unravel that on historical grounds?  

The will of the people being what it was, the Federalist Party was booted out of power for good in 1800, ad was never brought back again--ever.  

The essential feeling of the people of the United States toward Federal Power and especially US Government Power was best summed up by that wag who said, "That Government Governs Best, that Governs Least", a phrase that President Reagan was fond of quoting.  

I'm going to take my adjournment now.  I already took a recess for a few minutes to get a soda.  See you next time.  

Art K, Philly
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Location: Washington, DC, USA

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