National Labor Relations Board v. Noel Canning, No. 12-1281

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On June 24, 2013, the Supreme Court also granted cert to NLRB v. Noel Canning (No. 12-1281), a case which is a major test of the Constitution’s grant of power to the President to name appointees temporarily to government posts when the Senate is in recess.

The case is coming up from the D.C. Circuit, where the D.C. Circuit ruled that President Obama’s temporary appointments to three empty seats on the five-member NRLB (made while the Senate was on recess except for intermittent, routine sittings), were unconstitutional, thereby nullifying these appointments.

When the Supreme Court hears the case next term, it will decide the two questions presented, plus one it has requested the parties to brief:  (1) if the President may make temporary appointments to vacant posts only at the end of the Senate’s annual sessions or also during other breaks in sessions; (2) whether the President could fill a post that became open at any time during an annual session or only those that became vacant in the end-of-session periods, and (3) whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.