The NLRB Goes Down

The much-awaited argument in Noel Canning, arising over purported recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau, was a bit of a yawner (transcript here). And it won’t be a big test of originalism, textualism, etc: If (as here) the government doesn’t have an argument from text, or structure, or history, or functionality, what does it matter? And if the Senate was in session anyhow, why are we arguing about recess appointments? You don’t have to follow the argument. Just count the lines in the transcript: the justices let Miguel Estrada, who made that argument on behalf of Republican Senators, drone on for five minutes at a time. That means they’ve made up their minds. Here, it means that the government loses, most likely on those grounds. Told you so.

To share another brilliant insight, or at any rate a speculation: Noel Canning may prove to be much less important than today’s (Jan. 14) case. The question is whether controversies over private rights can be committed to non-Article III tribunals—here, bankruptcy courts. In the last case over that question, the Court held that Congress can’t do that (and the Chief nearly threw a fit). The question now is whether parties in bankruptcy can divest federal (Article III) courts of their jurisdiction by consent.

Get the joke? Noel Canning was an NLRB adjudication over private rights. Constitutional? If “no,” why worry about the appointments?

Totally great FedCourts questions. But also a larger perplexity of constitutional law and litigation: you want it to be understandable. But all that matters, maybe, happens deep in the weeds.