Justices Agree to Hear Case on President’s Recess Appointments

Published: June 24, 2013 - New York Times

WASHINGTON — The Supreme Court on Monday agreed to decide whether President Obama violated the Constitution last year when he bypassed the Senate in making three recess appointments to the National Labor Relations Board.

The court will review a January decision from a three-judge panel of a federal appeals court in Washington that ruled against the administration on very broad grounds, calling into question the constitutionality of many recess appointments by presidents of both parties.

The three appeals court judges agreed that presidents may avoid the usual Senate confirmation process only during the recesses between formal sessions of Congress, which generally happen once a year. Two of the judges went further and said that presidents may fill only vacancies that arose during that same recess.

If the Supreme Court agrees on both points, it would markedly narrow the president’s recess appointment power.

In asking for Supreme Court review in the case, National Labor Relations Board v. Noel Canning, No. 12-1281, the administration sought an answer to only the broader questions decided by the appeals court. A decision in the administration’s favor on those points would leave open the more focused question of when appointments are proper during other breaks in the year.

But the Supreme Court, acting on the suggestion of the company that had won before the appeals court, agreed to answer a narrower question, too: whether the president may make recess appointments when the Senate is convening every three days in pro forma sessions. Though it had won in lower court rulings, the company, Noel Canning, did not oppose Supreme Court review.

If Mr. Obama’s appointments to the labor board were not valid, it lacked a quorum to make decisions, including one finding that Noel Canning, a soft drinks bottler, had violated the National Labor Relations Act by refusing to sign a labor contract it was said to have agreed to orally.

In its brief urging the justices to hear the case, the administration said that the appeals court’s ruling “threatens a significant disruption of the federal government’s operations — including, most immediately, those of the National Labor Relations Board.” The ruling, the brief said, “potentially calls into question every final decision of the board since Jan. 4, 2012.”

More broadly, the brief said, “the limitations imposed by the court of appeals would render many of the recess appointments since the Second World War unconstitutional.”