The Birth of Noel Canning And How The Senate Figured Out Standing to Sue

June 28th, 2014

Business Insider has a detailed profile of how the Noel Canning came came to be:

Senate Minority Leader Mitch McConnell began plotting his counter-attack just a few days after President Barack Obama made an end-run around Senate Republicans and unilaterally moved to fill slots on the National Labor Relations Board in January 2012.

One night that month, McConnell called a small group of his top advisers into his conference room, a red-painted chamber that faces the National Mall and is lined with oil paintings of famous Republican statesmen. With the smell of a wood-burning fireplace wafting in from a nearby room, McConnell and his advisers talked about how to challenge what they viewed as an unprecedented abuse of power from the executive branch.

That meeting is cited as one of the key early developments that led to the eventual, universal rebuke of Obama’s move by the Supreme Court on Thursday.

At the meeting McConnell’s team agreed they were left with two options to proceed, since Senate Majority Leader Harry Reid would not authorize an institutional lawsuit on behalf of the Senate. Senate Republicans concerned about Obama’s use of recess appointments could either sue as individual members, or they could join a private party case as a group.

McConnell’s advisers saw complications with the first option. It was questionable whether they could prove they had standing to sue the administration. They also worried about the perception of a lawsuit that pitted them squarely against the president.

They decided they would join a private-party case. McConnell tasked John Abegg, one of his top aides, with finding the right suit — one in which the facts and injury were clearly laid out and legal theory was solid.

Abegg soon discovered Noel Canning, a division of the soft-drink bottling company Noel Corporation. The company had sued after the NLRB ruled against it in early 2012, saying the business engaged in an unfair labor practice by not entering into a collective bargaining agreement. Noel Canning and Senate Republicans formed a partnership. The U.S. Chamber of Commerce also represented Noel.

“Noel certainly took a huge risk,” Gary Lofland, one of the lawyers representing the company, told Business Insider. “It was a really gutsy move to challenge the President of the United States on something like this, coming from a very small company.”

Republican senators retained Miguel Estrada, an attorney who served as the Assistant to e Solicitor General for the George H.W. Bush administration. McConnell’s team felt it was on solid ground by January 2013, when the U.S. Court of Appeals for the District of Columbia Circuit sided with Noel Canning in its ruling on the case.

The article closes with a note of what Noel Canning means for the pending Boehner lawsuit:

Lawyers involved on the case and other legal experts said it could provide a blueprint for House Speaker John Boehner, who is preparing to file his own lawsuit against Obama over his use of executive actions. Boehner’s lawsuit would be different from the McConnell-led challenge, since it would be filed on behalf of the House, which would argue it has standing because Obama has made its legislative powers obsolete.

A source close to Boehner told Business Insider the NLRB decision served as a “psychological boost,” since the Supreme Court gave a sweeping ruling Obama had overreached. However, the source said the ruling wouldn’t change Boehner’s strategy.

Estrada said both Boehner and McConnell’s suits were aimed at taking on the “same problem.”

“It is another effort to attack a species of the same problem, which is the unilateralism of this president,” Estrada told Business Insider. “It is a different type of effort. But I think the effort is brought by the same underlying problem, which is that this president doesn’t want to deal with Congress.”