It’s going to take a while to sort out all the winners and losers in the wake of National Labor Relations Board v. Noel Canning. How many labor rulings will ultimately be voided because of Thursday’s opinion, which vacated key appointments to the NLRB while clarifying both the president’s power to make recess appointments and the Senate’s power to block them? On the political side, what will the decision mean for future appointments as power shifts on Capitol Hill?
On the legal front, on the other hand, picking winners is a cinch. Noel Canning, represented by Jones Day’s Noel Francisco, prevailed over the NLRB with the contention that the Senate—not the president—is the master of Senate procedure. And amicus counsel Miguel Estrada of Gibson, Dunn & Crutcher, who took up the case on behalf of Senate Republicans, delivered the argument that carried the day. Unanimously, the justices agreed with Estrada’s straightforward assertion at oral argument that “the Senate gets to decide whether the Senate is in recess.”
