Monday, June 24, 2013

BREAKING: SCOTUS to Decide Noel Canning (NLRB Recess Appointments)

This just in . . . SCOTUS has agreed to hear NLRB v. Noel Canning (order here). The Supreme Court will address the constitutionality of President Obama's "recess" appointments to the NLRB. Specifically, whether I can stop putting scare quotes around recess.

You can read briefs and other filings at the SCOTUSblog case page. According to the Petition for Writ of Certiorari, the issues presented are:
1. Whether the President's recess-appointment power may be exercised during a recess that occurs within the 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.
Put another way: Under the Constitution, when can the President make the appointment, and when must the vacancy occur?

Per the Order, SCOTUS has also asked the parties to address:
In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: Whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.
I have been on this one for a while. Here's some background on the issue from my post of January 2012. And some Lawffice Links from the DC Circuit's decision that the appointments were unconstitutional. I find this issue fascinating, and it has the potential to impact recess appointments across presidents and agencies.

Image: Supreme Court seal. Not official use.