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Supreme Court to decide fate of Obama’s recess appointments

Supreme Court to decide fate of Obama’s recess appointments

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In a case that will decide not only the fate of hundreds of National Labor Relations Board decisions and rules issued over the last 18 months but also help define the constitutional limits of presidential and congressional authority, the U.S. Supreme Court has agreed to decide whether the president had the power to install three of his nominees to the board without Senate approval.

In granting certiorari in NLRB v. Noel Canning, the court also directed the parties to brief and argue an additional question: whether the president’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.

The controversial recess appointments at issue in the case were made in June 2012 during a period in which GOP members of the Senate were vowing to block the president’s nominees to the board. For months, Senate members opened a series of pro forma sessions — in which the Senate was technically in session but no business was conducted — to prevent the legislative body from going into recess. Although NLRB members require Senate approval, the president can make temporary appointments unilaterally in certain circumstances when Congress is not in session.

The case considers in what circumstances the president has the authority to make such recess appointments. The D.C. Circuit held that the recess appointments were unconstitutional under the Recess Appointments Clause, which allows such action only when Congress breaks for inter-session recesses — not during breaks within a Congressional session such as the one in January 2012. The Obama administration, arguing that the D.C. Circuit’s ruling “would dramatically curtail the scope of the President’s authority under the Recess Appointments Clause,” asked the Supreme Court to take up the case and reverse. Since the certiorari petition was filed, the 3rd Circuit also ruled that the recess appointments were invalid.

If the Supreme Court affirms the D.C. Circuit’s ruling, the decision would invalidate hundreds of decisions and other actions taken by the board since appointments under the court’s 2010 ruling in New Process Steel v. NLRB, which held that the board did not have the authority to act with fewer than three members under the National Labor Relations Act. After that decision, the board had to readjudicate hundreds of cases it had ruled upon with a self-designated quorum of only two members.

But the current case could have more serious consequences if the Senate does not confirm at least three of the five pending NLRB nominees. Without a Senate-confirmed quorum in place, the NLRB will be rendered statutorily inoperable under the New Process Steel holding.

Though the case involves a challenge only to appointments to the NLRB, it also could affect the Consumer Financial Protection Bureau whose director, Richard Cordray, was appointed simultaneously with the NLRB members.

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