The NLRB has filed its opening Supreme Court brief in the Noel Canning case, in which the validity of the President’s January, 2012 recess appointments of former, putative NLRB members Richard Griffin and Sharon Block are at issue. Included as an appendix to the brief is an exhaustive list of intra-session recess appointments, going back to President Andrew Johnson in 1867. Still to come is the company’s brief next month, as well as a likely host of amicus briefs supporting one side or the other.
There is, of course, far more at stake in the case than the validity of the President’s recess appointments to the NLRB in January, 2012. The greater Constitutional issue is the scope of the President’s recess appointment power generally. The Supreme Court’s decision promises to be a landmark ruling in the balance of power between the executive and legislative branches of the federal government — the President’s power to make recess appointments to senior positions in the executive branch and independent agencies, versus the requirement that the Senate give its “advise and consent” to such appointments.
The key to the resolution of the issue will likely hinge on the meaning of the term “recess” as it is used in the Constitution’s recess appoinments clause. That seemingly simple question has been the subject of lengthy, scholarly opinions from three federal circuit courts of appeals so far, each of which delved deep into the history of the Constitution’s recess appointments clause, the practices that were followed at the time of its drafting, as well as the history of recess appointments as far back as President Washington.
The Supreme Court will take the case up during its session beginning October 7, 2013. A decision is expected by the end of the court’s term in June, 2014.