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Supreme Court Deciding Whether Recess is Over for Obama

January 14, 2014

On January 13th the United States Supreme Court heard oral argument in the case on NLRB v. Noel Canning. Gary Lofland of Halverson Northwest Law Group represents Noel Canning.

This controversial case addresses the President’s ability to make appointments while the Senate is in recess and aims to clarify what actually constitutes a recess. Prior to coming before the Supreme Court, the D.C. Court of Appeals determined President Obama’s 2012 appointments to the National Labor Relations Board (NLRB) to be unconstitutional, since they occurred while the Senate was still meeting in pro forma sessions.

Noel Canning advanced the argument that allowing these appointments to stand establishes an overly broad interpretation of the Recess Clause which undermines the structural protections that enable the Senate to keep potential abuses of presidential power in check. A final decision is expected from the court by June. Since the Senate was not in an intersession recess when President Obama appointed the panel members in question, hundreds of NLRB rulings made by these members could be rendered invalid.

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