Supreme Court to hear NLRB case, weigh limitations on executive power

The Supreme Court will hear oral arguments this morning in case over what some argue are unconstitutional recess appointments made by President Barack Obama and limitations on executive power.

The case, National Labor Relations Board v. Noel Canning, deals with recess appointments to fill three vacancies on the National Labor Relations Board (NLRB). President Obama and his administration insist that the January 2012 appointments are valid because the Senate was in recess.

That argument, however, is specious, at best. The Senate was in pro forma session — meaning that it had not formally adjourned — when President Obama made the appointments. In other words, recess appointments could not actually be made.

The Constitution — in Article II, Section 2 — provides the president with the power to submit nominations for “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” These nominations are reviewed by the Senate, though its “advice and consent” role, and must be approved by two-thirds of that chamber.

Article II, Section 3 states that when the Senate is not in session, a president can act “to fill up all Vacancies that may happen.” But the Senate would still need to approve the nomination during their next session, otherwise the appointee’s commission expires upon the next congressional adjournment.

The Supreme Court will weigh a few different issues in the case, according to Lyle Denniston of SCOTUSBlog, relating to recess appointments.

“The Justice Department put two questions before the Court: may the president make a recess appointment when the Senate takes a recess interrupting its annual sessions, or is that option open only at the end of each such session; and may the president fill vacancies that occurred at any time, or only those that arose during the recess when an appointment to that post is made,” wrote Denniston in his preview of the case.

He also noted that court members may determine whether or not a pro forma session in a legitimate time in which a president can make recess appointments.

The White House faces some tough odds. Three federal appellate courts — the D.C. Circuit and the Third and Fourth district courts — have already ruled against President Obama.


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