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Tuesday, June 25, 2013

Supremes Grant Cert in Noel Canning

Back in late January, I wrote a post advocating that the Noel Canning case on intrasession recess appointments should go to the Supreme Court, and another one comparing Larry Tribe's changes in opinion on the Consitutionality of such appointments, from the W administration (they were unConstitutional) to the Obama administration (they have magically become Constitutional).   Yesterday, the Court took the case, on a petition from the federal government, which lost in the D.C. Circuit, where a panel laid out arguments remarkably similar to W-administration-Tribe's).

I am delighted and continue to believe, as I did in January, that the odds of Noel Canning being affirmed are the better odds.   As I explained then, Justice Kagan might have to recuse herself on account of having taken a position on the issue while Solicitor General, and, if she doesn't, she will have to decide if she will stray from that view which was much less expansive than the Government's  tactically unwise carte blanche position in the D.C. Circuit.   Moreover, for reasons I laid out back in January, I think Justice Kennedy is increasingly more likely to throw his swing vote against the Government's position, particularly if the Government maintains the extreme position it expounded at the D.C. Circuit.  It will be interesting to see if Tribe submits anything in amicus and also to see if either of this self-contradictory op-eds on the topic get quoted in any of the opinions.

Since the January posts, I came across this article in the Virginia Law Review that endorses the Noel Canning decision wholeheartedly.