This morning the Supreme Court will hear oral arguments in NLRB v. Noel Canning involving the validity of the president’s recess appointments to the National Labor Relations Board. In Noel Canning the Court of Appeals for the District of Columbia Circuit held that President Obama’s intrasession recess-appointments to the National Labor Relations Board were unconstitutional because they were made without the advice and consent of the Senate. Under the court’s ruling, the president can only make recess appointments when the Senate is in recess between sessions of Congress, and only if a vacancy has occurred in that same time period. The Third and Fourth Circuits subsequently joined the D.C. Circuit in invalidating the recess appointments to the NLRB.
While the ambiguity surrounding the validity of the NLRB was put to rest back in July when the Senate confirmed five of President Obama’s nominees to the NLRB, the Court’s eventual ruling will decide the validity of numerous NLRB decisions going back to at least January 2012. Of course, the decision will also define the boundaries of executive power and shape the ability of President Obama and future presidents to make recess appointments. Specifically, the issues to be decided in Noel Canning are:
(1) Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate;
(2) whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess; and
(3) whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.
Later today we we will discuss the highlights from this morning’s argument on this blog. In the meantime, additional details can be found here: