Would Kagan Need To Recuse Herself From NLRB Case?

Associate Justice Pledged To Excuse Herself From Any Cases In Which She Was Involved & Filed Briefs. 

Constitutionality Of Obama NLRB Recess Appointments May Be Headed To U.S. Supreme Court:

President Obama’s Recess Appointments To The National Labor Relations Board (NLRB) Were Recently Ruled Unconstitutional, An Issue Likely To Be Decided By  The U.S. Supreme Court (SCOTUS). “President Barack Obama violated the Constitution by making appointments to the federal labor board without Senate approval, a U.S. appeals court said in a ruling that calls hundreds of board decisions into question and may extend to the head of the new consumer finance agency.  The U.S. Court of Appeals in Washington sided with Republican lawmakers in a unanimous opinion … The government may seek a rehearing by the three-judge panel that ruled on Jan. 25, or instead seek a so-called en banc review by a larger panel of circuit judges.  It may also move to request the U.S. Supreme Court take up the matter.  The Supreme Court is more likely to accept such an appeal when there is a split among the federal appeals courts.” (Tom Schoenberg, “Obama Picks Rejected as Court Casts Doubt on Recess Power,” Bloomberg, 1/27/13)

As A SCOTUS Nominee, Then-Solicitor General Elena Kagan Promised To Recuse Herself From Cases She Was Involved In:

During Her 2010 Supreme Court Confirmation, Then-Solicitor General Elena Kagan Promised To Recuse Herself From Cases She Had Previously Worked On. SEN. PATRICK LEAHY: “Tell me about, what principles are you going to use to make recusal decisions?  If you can, do it just briefly.  But then tell us some of the cases where you anticipate you are going to have to recuse.”  MS. KAGAN: “Senator Leahy, I think certainly as I said, in that questionnaire answer, that I would recuse myself from any case in which I’ve been counsel of record at any stage of the proceedings, in which I’ve signed any kind of brief … So that’s a flat rule.  In addition to that, I said to you on that questionnaire that I would recuse myself in any case in which I’ve played any kind of substantial role in the process.  I think that that would include – I’m going to be a little bit hesitant about this, because one of the things I would want to do is talk to my colleagues up there and make sure that this is what they think is appropriate too.  But I think that that would include any case in which I’ve officially, formally approved something.  So one of the things that the solicitor general does is approve appeals or approve amicus briefs to be filed, in lower courts, or approve interventions.” (Senate Judiciary Committee Hearing, 7/29/10)

  • NOTE: Then-Solicitor General Elena Kagan Specifically Represented That She Would Recuse Herself From Any Case “In Which I’ve Signed Any Kind Of Brief.”(Senate Judiciary Committee Hearing, 7/29/10)

Then-Solicitor General Elena Kagan Filed Briefs Supporting NLRB With Only Two Members:

In NLRB V. Laurel Baye Healthcare, Then-Solicitor General Elena Kagan Wrote A Reply Brief. KAGAN: “The court of appeals held that the two sitting members of the five-member National Labor Relations Board (Board) may not exercise the powers that were properly delegated to them as part of a three-member group.  That holding is contrary to 29 U.S.C. 153(b), which provides that the Board may delegate ‘any or all’ of its powers to a three-member group, and that ‘two members shall constitute a quorum’ of such a group.” (United States Supreme Court, 09-377, Reply Brief, October 2009)

In New Process Steel V. NLRB, Then-Solicitor General Elena Kagan Filed Documents On Behalf Of The NLRB. “In the 12 years preceding those amendments, the Board had routinely conducted business with a two-member quorum of the then-three-member Board.” (United States Supreme Court, 08-1487, Brief For The National Labor Relations Board, February 2010)

  • NOTE: In The New Process Steel V. NLRB Case, Then-Solicitor General Kagan Discussed Recess Appointments In A Letter Brief She Filed Supporting The NLRB. KAGAN: “Although a President may fill such vacancies through the use of his recess appointment power, as the President did on March 27 of this year, the Senate may act to foreclose this option by declining to recess for more than two or three days at a time over a lengthy period … Presidents have not in recent decades made recess appointments during intra-session recesses lasting fewer than three days.” (United States Supreme Court, 08-1487, Letter From Solicitor General Elena Kagan, Dated 4/26/10)

In A Letter  Sent In April 2010, Then-Solicitor General Elena Kagan Argued That A Two-Member NLRB Should Be Allowed To Make Decisions. KAGAN: “For these reasons, a decision of this Court declining to decide whether the two-member decisions are valid would significantly burden the rights protected by the NLRA.” (United States Supreme Court, 08-1487, Letter From Solicitor General Elena Kagan, 4/26/10)


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