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Obama administration urges Supreme Court to limit review of recess appointments

The Obama administration on Thursday urged [text, PDF] the US Supreme Court [official website] to limit the scope of its review of the case challenging the president's power to temporarily fill vacancies in government offices. The government laid out its arguments limiting the scope of the case in the reply brief filed in National Labor Relations Board v. Noel Canning [SCOTUSblog backgrounder] in which the lower court ruled such appointments were unconstitutional. The Supreme Court is set to decide if it will accept the government's petition to review the decision. Noel Canning contends that the court should review if the Senate's pro forma sessions held last January prevented it from being in recess. The government's reply brief claims:

The effect of the Senate's pro-forma sessions on the length of its recess was the principal question addressed by the parties in the court of appeals, ... and it is assuredly important. But that question was not resolved by the court of appeals, and it has not yet been resolved by any court, though it might be a ground of decision in any of several cases that are currently pending in the courts of appeals.
Because the issue was not addressed in the lower court, the government contends it should not be addressed in the Supreme Court's review.

The writ of certiorari was filed [JURIST report] in April. The US Court of Appeals for the District of Columbia Circuit [official website] ruled [JURIST report] in January that the recess appointment of three members of the National Labor Relations Board (NLRB) by President Barack Obama was unconstitutional. The case was brought by a bottler and distributor of Pepsi-Cola products in Washington state challenging the NLRB after the Board affirmed a decision that the distributor violated the National Labor Relations Act (NLRA) [text]. In addition, two business advocacy groups filed motions contesting the constitutionality of the president's recess appointments [JURIST reports] in January 2012. The US Department of Justice (DOJ) [official website] defended the use of recess appointments [CRS backgrounder, PDF] by Obama immediately after his announcement. The DOJ's memo argues that although the Senate met between January 3 and 23, the sessions were not sufficient to constitute an interruption of a recess under the Recess Appointment Clause because they were only pro forma sessions that lasted less than a minute and there was no intent to conduct any business.

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