My experience is that oral arguments, while often interesting, rarely open much of a window into exactly how a court will actually decide the case. Today’s Supreme Court argument in NLRB v. Noel Canning may be an exception. Nearly all of the Justices had questions which suggested skepticism over the validity of the President’s January 4, 2012 recess appointments to the NLRB.
The skepticism seems to be rooted in two principal concerns, which are not necessarily shared by each Justice. First, the plain wording of the Constitution’s Recess Appointment Clause simply mandates affirmance of the D.C. Circuit’s decision. Second, disagreements over appointees are consigned by the Constitution to the political process, which includes the Senate’s ability to prevent recess appointments by limiting or eliminating recesses.
Further, with respect to intra-session recesses, the Court appears to be reluctant to delve into deciding just how many days must pass before a President could make an intra-session recess appointment. Were the Court to rule that the Constitution allows intra-session recess appointments, I think it would very likely leave the question of if and when an intra-session recess occurs in the hands of Senate.
There were also questions by the Justices about the practical impact of upholding the D.C. Circuit, and whether it would cause wholesale disruption of past actions of putative recess appointees at the NLRB and elsewhere in the federal government. For the most part, those questions were answered by counsel for the company, who indicated that mootness, statutes of limitation, the de facto officer doctrine and other judicially and legislatively developed theories, would limit any such disruption. Further, while the NLRB itself may be substantially impacted, there was no suggestion by any of the counsel at argument that the impact would overwhelm the agency or cause undue problems going forward.
As I said at the beginning, it is generally dangerous to predict the outcome of a case based on oral argument. You can take what you want from the foregoing, and the numerous other articles that are being written, and draw your own conclusions. We should all know the answer by the end of June.