The D.C. Circuit cites Edmund Randolph, the first Attorney General, on what "happen" means.
Scene: Snappy sits at the bar, perhaps on Key West, Bitey on the stool next to her. A volume of Through the Looking-Glass, and What Alice Found There protrudes from Snappy's satchel.
Bitey: Mmmm, mmmm, good! I sure do like this Maharajah IPA you ordered for me, Snaps. It rocks!
Snappy: 'Twas brillig.
Bitey: You mean that new ruling by the D.C. Circuit? On recess appointments? Last week?
Snappy: None other.
Bitey: Yeah, that stunned me!
Snappy: How do you mean?
Bitey: How Their Honors went so far out of their way.
Snappy: To do what?
Bitey: To cut back on when a President can appoint people to posts without the Senate's okay, while it dozes.
The case dealt with a Pepsi bottler's gripe over a ruling in favor of its employees' union by an admininstrative law judge. The ALJ found that the bottler — Noel Canning — had agreed to a pay increase, although it claimed it didn't agree. The NLRB upheld the decision.
Snappy: Bor-ing. Don't test my patience, Bitey.
Bitey: Ow! It hurts when you whack my snout like that, Snapster! Noel Canning never told the Board that it (the Board) didn't have power to okay the ALJ's ruling because three of the five members had gotten unconstitutional "recess appointments". But the court of appeals panel reached that issue anyway.
Snappy: So what? That sounds like a pretty basic problem that a court should get to whether the loser argued it or not.
Bitey: Except that the statute that allows the court to second-guess NLRB edicts says it can't review on the basis of arguments that the parties didn't raise before the Board, except in cases of "extraordinary circumstances". The panel didn't explain what seemed "extraordinary" about the failure to make the no-power argument to the Board. It called the circumstances "extraordinary" because it agreed the Board lacked power.
Snappy: Beware the Jabberwock, my son.
Bitey: I always do!
Any-hoo, the panel wouldn't have gotten to the "extraordinary" question if it hadn't rejected Noel Canning's complaint on the merits. Which it did in part because Noel Canning hadn't raised another argument with the Board (about what law applied).
Snappy: The jaws that bite.
Bitey: You got me there!
So, the panel cleared a path to the Constitutional Issue — whether the Recess Appointments Clause allowed President Obama to appoint three NLRB members during hiatuses in full-bore meetings of the Senate.
Snappy: The claws that catch.
The court did a two-fer on the CI. It said, first, that "the Recess" in Article II, Section 2, Clause 3 of the Constitution (it provides that "[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate") means the time after a "Session" of the Senate ends and before a new one starts. Instead of, you know, whenever the Senate has quit meeting to do business, whether during a Session or after.
Snappy: The frumious Bandersnatch!
Bitey: The court disagreed with the Eleventh Circuit's contrary ruling in Evans v. Stephens, 387 F.3d 1220, 1224 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005). It also said that Presidents don't have a bit of leeway in deciding whether "the Recess" has begun because that would give "the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction." Noel Canning v. Nat'l Labor Relations Bd., No. 12-1115, slip op. 26 (D.C. Cir. Jan. 25, 2013).
Snappy: Came whiffling through the tulgey wood, and burbled as it came!
Bitey: Yep. Then it got really interesting.
Snappy: The vorpal blade went snicker-snack!
The panel Went Further. As in Unnecessarily. Noting that "our holding on the first constitutional argument of the petitioner is sufficient to compel a decision vacating the Board's order", it reached out to rule on what "happen during the Recess" means in the Recess Appointments Clause. It held that — contrary to the practice of Presidents and Congresses since 1820 or so — "happen" equals "arise". Which conflicts with rulings by three other circuits. Evans v. Stephens, 387 F.3d at 1226-27; United States v. Woodley, 751 F.2d 1008, 1012-13 (9th Cir. 1985); United States v. Allocco, 305 F.2d 704, 709-15 (2d Cir. 1962).
Snappy: He left it dead.
Bitey: Sure did!
Because if it has to "arise during the Recess" instead of "exist during the Recess", the RAC will have a very small ambit.
Snappy: And with its head.
Bitey: So, to sum up, the panel (a) would not have reached any constitutional issue if it had not upheld the Board's decision on the merits, in part by refusing to consider a choice-of-law argument that Noel Canning failed to make to the Board; (b) didn't refuse to consider Noel Canning's constitutional argument despite the fact that it failed to make the argument to the Board; (c) ruled that Presidents can't make recess appointments except between Sessions of the Senate, disagreeing with the only circuit that has addressed the question; and (d) further ruled, unnecessarily and in contradiction of three other circuits, that Presidents can't make recess appointments unless the vacancies that they fill with recess appointees "arise" between Senate Sessions.
Snappy: He went galumphing back.
Bitey: Man, I love this Maharajah!