Employment Law Report

Supreme Court Hears Arguments in NLRB Recess Appointments Case

By Edwin S. Hopson

The U.S. Supreme Court heard oral arguments in NLRB v. Noel Canning earlier this week.  This case, involved the recess appointment of three members to the National Labor Relations Board in early January 2102 by President Obama. The several issues to be resolved, as specified by the High Court are:

“1. Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate.”

“2. Whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.”

The Court also stated:  “In addition to the questions presented by the Petition, the parties are directed to brief and argue the following question:  whether the President’s recess appointment power may be exercised when the Senate is convening every three days in pro forma sessions.”

According to various news reports, many of the Justices appeared skeptical of the government’s position during oral argument.

It may be several months before the Court issues its decision.