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Were Obama recess appointments constitutional? Supreme Court takes case

The Supreme Court will weigh in on a major flash point between President Obama and Senate Republicans, who challenge his use of recess appointments while their chamber is holding 'pro forma' sessions.

By Staff writer / June 24, 2013

People wait in line outside the Supreme Court on Monday, as key decisions are expected to be announced. The court is meeting Monday for its last scheduled session, but will add days until all the cases are disposed of.

Carolyn Kaster/AP



The US Supreme Court on Monday agreed to take up a potential landmark case examining whether President Obama usurped the power of Congress in January 2012 when he sidestepped the Senate approval process to seat three new members on the National Labor Relations Board (NLRB).

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At issue in the case is whether a president’s power under the Constitution’s Recess Appointments Clause is limited to appointments during the formal recess between each new Congress or whether it also extends to less formal breaks that occur within a Senate session.

The case will also test whether the recess appointment authority may be exercised by the president when the Senate is convening every three days in “pro forma” sessions.

The NLRB appointments were necessary to ensure the board continued to have a three-member quorum capable of issuing rulings. 

The case, National Labor Relations Board v. Noel Canning (12-1281), will be set for argument during the court’s next session, which begins in October.

The dispute marks an important test of the scope of presidential power to bypass the general requirement that the president obtain the advice and consent of the Senate on nominations to executive branch and judicial posts.

The Constitution’s Recess Appointments Clause was designed to allow the president the flexibility to fill vacant positions when the Senate is not available to perform its required function of advice and consent.

The issue arose in January 2012 at a time when the full Senate was not sitting, but the body, nonetheless, was convening in pro forma sessions every three days.

Some legal analysts argue that this procedure effectively kept the legislative body in session, foreclosing any possible recess appointment by the president.

But others, including the Justice Department’s Office of Legal Counsel, concluded that since the Senate was not conducting actual business during three weeks in January, the body was in recess.

“In view of the Senate’s explicit cessation of business for that extended period, the President determined that the Senate was in recess,” Solicitor General Donald Verrilli wrote in his brief urging the high court to take up the case.

“Accordingly, on January 4, 2012, the President invoked the Recess Appointments Clause and appointed three new members to fill the vacant seats on the [National Labor Relations] Board,” Mr. Verrilli wrote.

The action was unusual not just because of the reliance on the recess appointment authority. It was unusual because two of the three appointees to the NLRB had been nominated only three weeks earlier. By the time the president unilaterally placed them in their jobs on Jan. 4, routine committee questionnaires and background checks related to their nominations had not yet been submitted to the Senate.

The validity of the appointments was first raised in a case before the NLRB. Noel Canning is a soft drink bottling and distribution company in Washington State. The firm was in a dispute with the Teamsters Union over a collective bargaining agreement.

The issue went before the board and the board ruled against Noel Canning. The company took its case to the federal appeals court in Washington, D.C. As part of its argument, lawyers for the company challenged the validity of Mr. Obama’s recess appointments to the board. They argued that since the appointments were invalid, the board lacked a quorum and was powerless to issue a ruling in the case.


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