NFIB Legal Explains What the Recess Appointment Case Means for Small Business

Great news from Washington – Virtually all of the commentary on today’s oral arguments in NLRB v. Noel Canning suggests that the Court is inclined to hold President Obama’s 2012 “recess appointments” to the National Labor Relations Board unconstitutional. ABC News reports that the Court is “skeptical” about the President’s arguments. And in an exclusive Federalist Society teleforum, John Elwood—Partner at Vinson & Elkins, LLP—summed the argument up saying: “The writing on the wall is in neon.”

We are cautiously optimistic here at NFIB Legal. But, there are several ways that the Court might choose interpret the Recess Appointment Clause—some of which would cabin the President’s appointment powers more than others. So, we will have to wait to see exactly how the court rules. But, at this juncture it sounds like we can expect a positive decision one way or the next. 

Of course, NFIB joined with other industry groups in filing an amicus in this case because we think it has profound implications for small business. For a simple break-down of what is at stake, and why it matters to mom-and-pop shops, check out Karen Harned’s op-ed in the Daily Caller today. 

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About Luke Wake

Luke A. Wake is a senior staff attorney at the NFIB Small Business Legal Center. Wake has particular expertise on environmental and land use issues, and has worked on numerous other constitutional issues and matters of importance to small business owners. He is an ardent defender of private property rights, which he believes are essential to the free enterprise system and the foundation of American liberty. As a strong advocate of individual rights and economic liberties, he has built his career defending small business interests. Since joining the NFIB Legal Center, Wake has focused on a whole host of issues, from employment law matters to regulatory compliance. In addition to serving as a resource for small business owners, Wake remains committed to the Legal Center’s pledge to ensure that the voice of small business is heard in the nation’s courts. He is also working to advance small business interests in law review articles, including publications in the Berkeley Journal of Law & Ecology, the Texas Journal of Law and Politics, and Competition Magazine. See R.S. Radford & Luke A. Wake, Deciphering and Extrapolating: Searching for Sense in Penn Central, 38 Ecology L.Q. 731, 746-747 (2011); Damien M. Schiff, Luke A. Wake, Leveling the Playing Field in David v. Goliath: Remedies to Agency Overreach, 17 Tex. L. Rev. & Pol. 97 (2012); Jarod M. Bona and Luke A. Wake, The Market-Participant Exception to State-Action Immunity From Antitrust Liability, J. of Antitrust and Unfair Competition of the State Bar of Ca., Vol. 23, No. 1, 156 (Spring 2014); James S. Burling and Luke A. Wake, Takings and Torts: The Role of Intention and Foreseeability in Assessing Takings Damages, in Condemnation 101: Making the Complex Simple in Eminent Domain 449-51 (ALI-ABA Committee on Continuing Professional Education eds. 2011). Before joining the Legal Center’s team, Wake completed a prestigious two-year fellowship as an attorney in the Pacific Legal Foundation’s (PLF) College of Public Interest Law. Wake is a graduate of Case Western Reserve University School of Law in Cleveland Ohio. He is a member of the California Bar, the District of Columbia Bar, and the U.S. Supreme Court Bar. He completed his undergraduate studies at Elon University in North Carolina in 2006 where he focused on political theory and corporate communications.
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