Current Litigation

In June 2013, the US Supreme Court agreed to hear arguments during the October 2013 term on the controversy regarding the constitutional limits of the president's recess appointment power. The Court granted certiorari to a petition by the president following a case, National Labor Relations Board (NLRB) v. Noel Canning, in which the US Court of Appeals for the District of Columbia found certain recess appointments made by President Barack Obama unconstitutional. The Court will address two issues. The first is 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. The second is 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.

In this case, decided in January 2013, the US Court of Appeals for the District of Columbia held that President Obama unconstitutionally exceeded his recess power when he appointed three members of the NLRB on January 4, 2012. The appointments occurred during a time when the Senate was convening every three days in pro forma sessions. The court ruled that the president can only exercise his power under the Recess Appointments Clause, Art. II § 2, cl 3, during "the Recess of the Senate."

The case came following a decision by the NLRB that Noel Canning, a Pepsi-Cola bottler and distributor based in Washington State, violated the National Labor Relations Act. The company challenged the constitutionality of the appointments in court, stating that the decisions should not stand due to the nature of the appointments.

Two other lower courts, the US Courts of Appeal for the Fourth and Third Circuit, issued similar rulings. In July 2013, the Fourth Circuit invalidated two decisions by the NLRB against Enterprise Leasing Company Southeast and Huntington Ingalls, Inc. based on the alleged unconstitutionality of the appointments. The Third Circuit invalidated a ruling against a nursing and rehabilitative care center following their refusal to bargain with elected union officials based on similar constitutional grounds in May 2013.


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