On June 24, 2013, the Supreme Court granted certiorari to review a January 2013 ruling by the D.C. Circuit which invalidated three of President Obama's recess appointments to the National Labor Relations Board (the "NLRB" or the "Board") as unconstitutional. In the historic ruling, the D.C. Circuit struck down the appointments to the Board, which needs a three-member quorum to operate, leaving hundreds of rulings by the Board in which the challenged appointees participated in a state of uncertainty.
The main question the Court will consider is whether the Constitution's recess appointment clause allows a president to make appointments only during recesses that occur between Senate sessions. The D.C. Circuit concluded in the affirmative, thereby finding unconstitutional the recess appointments of three Board members, which were made while the Senate was holding pro forma sessions and was therefore not actually in recess.
The impact of a potential affirmation by the Court may be far reaching. If the Court agrees with the D.C. Circuit's logic, more than 300 previous recess appointments by presidents in both parties would be considered invalid. More generally, the Court's decision to review the D.C. Circuit's ruling lays the foundation for an important test of the reaches of the executive branch's powers. Meanwhile, various rulings and pronouncements of the NLRB which were rendered following the recent appointments in January 2012 may be subject to attack.