In a highly-anticipated move, the United States Supreme Court agreed today to hear an appeal by President Obama’s administration from the D.C. Circuit’s Noel Canning ruling issued earlier this year. The Noel Canning decision, discussed here in a prior blog post, effectively 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.
The highest Court’s decision to hear the appeal is not surprising. However, it may have significant implications because the D.C. Circuit’s ruling has cast a cloud of uncertainty over hundreds of Board decisions that have been rendered since January of 2012.
Pressure had been building on the Court for some time to consider the scope and breadth of the power of the President to make intrasession Recess Appointments, especially because the Third Circuit also recently ruled that "the Recess of the Senate…refers to only intersession breaks." The May decision in New Vista Nursing solidified the Circuit split, since the Eleventh Circuit had held back in 2004 that intrasession Presidential recess appointments were constitutionally sound.
The big question that the Court is now tasked with answering essentially boils down to what the Framers of the Constitution intended the phrase "the Recess of the Senate" to mean. If the Court agrees with the Third and D.C. Circuits, then hundreds of Board decisions will have to be reconsidered and/or reissued because the Board would have been acting without a proper quorum pursuant to the New Process Steel decision. However, if the Court sides with the Obama administration, not only will Board decisions issued since January of 2012 stand, but other recent intrasession recess appointments, such as Richard Cordray’s appointment to serve as Director of the recently-created Consumer Financial Protection Bureau, will also be deemed constitutionally sound.
The Supreme Court will review the case in its next term, which is set to begin in October of 2013. In the meantime, the President’s renewed appointments of Members Block and Griffin, among a package of four nominees to the Board, will continue to work their way through the confirmation process — with the attendant political consequences. Whether that process or the Supreme Court consideration of Noel Canning occurs first will also have significant impact, as the term of current Board Chairman Mark Gaston Pearce expires in August of this year. That expiration will leave the Board with either zero or two Members — either way an insufficient number to satisfy the statutory quorum requirements.
Stay tuned here for news on developments and their impact.