SCOTUS Hears Arguments On Recess Appointments Case

The Supreme Court is set to hear arguments today on President Obama’s recess appointees to the National Labor Relations Board. In January 2012 President Obama appointed three members to the five-person NLRB unilaterally, maintaining that he had Constitutional authority to do so, as the brief pro-forma Senate session was a sham. In a February 2012 NLRB case, a three-member panel, including two of the recess appointees, decided in favor of the union and against the Noel Canning company. The  company then argued successfully to the D.C. Court of Appeals that the NLRB decision was invalid because the President’s recess appointments were in violation of the Constitution. Now the Supreme Court in National Labor Relations Board v. Noel Canning is considering what constitutes a valid recess appointment.

Meanwhile, a deal resolving the situation this summer specified that appointees Richard Griffin and Sharon Block be withdrawn from consideration for the Board appointment. Griffin was approved to serve as Board GC on Nov. 4. The case will have less impact now that the Senate implemented a rule change in November, so that only a simple majority is required to overcome filibusters on most executive branch and judicial nominees, replacing the previous 60-vote threshold that had effectively given Republicans veto power over Obama’s nominees.