As you read here  last week, the National Labor Relations Board has asked the Supreme Court to review the decision in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013). Noel Canning is the celebrated case in which the federal appeals court for Washington D.C. held that President Obama’s controversial 2012 NLRB recess appointments exceeded his constitutional authority.

The most important question presented is whether this presidential authority can be exercised only between formal sessions of the Senate, or whether any Senatorial “time off” constitutes an adequate recess.   At the end of 2011, Senate Republicans avoided formal announcement of a recess. In early January, 2012, during a three-day break in the actual conduct of Senate business, President Obama announced the “recess appointments” of Sharon Block (D), Terence F. Flynn (R), and Richard F. Griffin (D) to the NLRB – circumventing the need for Senate approval of Board nominees.  Noel Canning challenges the validity of those appointments.

This case holds great interest not only to the labor law community, but also to the public-at-large because of the strategic political importance of the presidential recess appointment.

As crucial  as this case is to the NLRB (every case since January 2012 – and possibly longer – runs the risk of being nullified), and as serious as the question it poses about presidential power , the Supreme Court is not required to hear it. The Court has broad discretion to choose the cases it wishes to hear. Here, however, the Board’s petition to the Court cites the 11th Circuit’s decision in Evans v. Stephens, 387 F.3d 1220 ( 2004), which on generally analogous  facts held a judicial recess appointment valid. The existence of apparently conflicting decisions between or among appeals courts is referred to as “a split in the circuits” – a traditional basis for Supreme Court consideration. Commentators expect the Court will agree to hear the case.

The question is a difficult one: the constitutional language is vague, the circumstances giving  rise to the provision are dated, and the power has been used inconsistently. However, the D.C. Circuit’s decision captured the imagination with its now-famous observation that the White House’s interpretation would “demolish the checks and balances inherent in the advice-and-consent requirement” and would allow the President “to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction.”   

Add to this the complication that the President now has formally nominated five individuals for full terms on the Board, including those now serving the disputed recess appointments. Action on these nominations is stalled as Senate Republicans contend that the current recess appointees should cease serving. It may be that no action will be taken, and that all Board decisions will be suspect until the Supreme Court rules.