The U.S. Supreme Court agreed on June 24 to hear a case involving the validity of three recess appointments President Obama made to the National Labor Relations Board in January 2012. The U.S. Court of Appeals for the District of Columbia Circuit ruled in January that the appointments to the NLRB’s board, which normally has five members, were invalid. The court’s decision will be made during the High Court’s next term, which will start in October.
The legal controversy originated when Obama ostensibly employed the recess power granted in Article II, Section 2, Clause 3 of the Constitution to fill three seats on the National Labor Relations Board (NLRB). The Constitution’s language on recess appointments reads: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
The core of the dispute, however, lies in the fact that the Senate was in a “pro forma” session at the time of the appointments during the 2011-12 winter holiday break. Republican senatorial leaders had arranged for a single Republican lawmaker to arrive at the upper chamber every three days and gavel the Senate to order, then after a short while, gavel it to a close.
A Yakima, Washington, Pepsi bottler named Noel Canning brought a legal challenge against an NRLB ruling concerning the bottler’s dealings with the Teamsters Union on the grounds that Obama lacked the authority to make recess appointments to the NRLB, rendering the appointments invalid and, therefore, the board lacked a quorum to render a decision.
In this case, National Labor Relations Board v. Noel Canning, the D.C. appeals court decided in Canning’s favor on January 25. In so doing, the court also invalidated Obama’ recess appointments.
“Allowing the president to define the scope of his own appointments power would eviscerate the Constitution's separation of powers,” D.C. Circuit Judge David B. Sentelle wrote in the NLRB v Noel Canning decision.
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