On January 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit decided Noel Canning v. N.L.R.B., No. 12-1115. It’s a mortal lock for Supreme Court review, and is certain to be closely studied by government lawyers, law students and professors, and political scientists. It should be. It makes the Affordable Care Act case seem almost trivial by comparison.
At issue in Noel Canning is whether the National Labor Relations Board had a lawful quorum when it decided an unfair labor practice case. Three of the five members who voted held office under recess appointments by President Barack Obama. The case presented two constitutional questions (in addition to some non-constitutional ones): First, may a president make a recess appointment i.e., one that does not require advice and consent of the Senate and lasts only until the end of the next session of Congress when the Senate is merely adjourned rather than during "the Recess" referred to in Article II, Section 2, Clause 2 of the Constitution? Second, does the power to make such appointments apply only to vacancies that arise during "the Recess" or does it extend to any vacancy that happens to remain unfilled during a recess?
