As our readers know, on April 25, 2013, the Solicitor General petitioned the Supreme Court to review the D.C. Circuit's Noel Canning decision,
which held that three putative recess appointments made by President
Obama to the National Labor Relations Board were, in fact, not proper recess
appointments and were thus invalid. Here's how the the Solicitor General puts the questions presented:
The Recess Appointments Clause of the Constitution provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Art. II, § 2, Cl. 3. The questions presented are as follows:
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.
On May 13, 2013, the respondent (Noel Canning) filed a brief in which it agreed that the Supreme Court should review the D.C. Circuit's ruling:
Respondent does not oppose certiorari because this case presents a constitutional question of extreme importance. The D.C. Circuit’s decision further calls into question the current authority of two major executive agencies to perform their statutory duties, a question of particular import given that the D.C. Circuit effectively has national jurisdiction over the federal Government. Certiorari is therefore appropriate.
In a footnote, Noel Canning noted that "[a]t the same time the President made the appointments at issue here, he purported to 'recess' appoint Richard Cordray as head of the Consumer Financial Protection Bureau." Noel Canning claims that the Solicitor General's questions presented are underuninclusive and asks the Court to add this question:
Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.
A group of employers calling itself the Coalition for a Democratic Workplace has filed an amicus brief in support of a grant of certiorari and of the D.C. Circuit's ruling. It makes an underinclusiveness point as well:
In fact, this case is even more significant – and more deserving of immediate review – than the petition reflects. Even if the government were correct that the D.C. Circuit erred in its interpretation of the Recess Appointments Clause, the January 4 appointments are unconstitutional for a more fundamental reason: Because the Senate did not adjourn for more than three days under the Adjournments Clause, the Senate was not in any sort of recess – intra-session or otherwise – on January 4, 2012. That is, regardless of what kind of break in Senate proceedings constitutes “the Recess” under the Recess Appointments Clause, it cannot possibly be one for which the Senate would not even require the House’s consent. The questions presented by the government are conspicuously under-inclusive in this regard. Indeed, although it is not apparent from the petition, the January 4 appointments were quite literally history unprecedented. To our knowledge, no President in history has attempted an intra-session recess appointment during such a brief adjournment. This abrupt departure from historical practice conflicts with the purpose of the Recess Appointments Clause and is a startling encroachment on the Senate’s
advice-and-consent function.
Finally, the Blog of the Legal Times is reporting that "Senate Minority Leader Mitch McConnell (R-Ky.) and the 44 other
Republican senators on Tuesday asked the high court to take up the case
and affirm a Washington federal appellate court decision in January that
invalidated three of Obama's appointments to the labor board."
