Today, the United States Supreme Court agreed to hear an appeal by the National Labor Relations Board (“NLRB”) in the Noel Canning case.  At issue is the constitutional legitimacy of certain “recess” appointments to the NLRB made by President Obama in early January, 2012.  Also to be affected by the forthcoming ruling will be an earlier such appointment made to the NLRB, and a contemporary appointment made to the Consumer Financial Protection Bureau (“CFPB”).

The case arose when, on January 4, 2012 and with Congress having technically convened (one day earlier) but on extended holiday break, Obama used his recess appointment power to fill three vacancies on the five-member NLRB, as well as appointing Richard Cordray as head of the CFPB.  Although the Senate was on break, it held brief, pro forma sessions every few days as part of an explicit Republican strategy to keep Obama from filling vacancies through recess appointments.  This was what the Democrats did during the final two years of the George W. Bush presidency.  Unlike Obama, Bush did not challenge the strategy.

Following the questionable appointments, a bottling company, Noel Canning, claimed an NLRB decision against it was not valid due to the alleged improper appointments.

In January of this year, the U.S. Court of Appeals for the D.C. Circuit issued a sweeping ruling invalidating the recess appointments, reasoning that such appointments can only be made during the annual recess between  formal sessions of Congress (intersession), as opposed to breaks during a session of Congress (intrasession).

Subsequently, the Third Circuit Court of Appeals reached the same result in a case involving an earlier recess appointee to the NLRB.

As things now stand, many hundreds of NLRB decisions, many of them regarded as adverse to employer interests, are in the balance.  If the Supreme Court affirms the two lower courts, those decisions will be set aside, and the respective parties will have to go about the business of unscrambling the respective eggs.  Moreover, the NLRB will have only properly-appointed one member, and will effectively cease functioning for the foreseeable future.

As an academic matter, regardless of which way the Supreme Court rules, fundamental constitutional law will be made.