On June 24, just as its October 2012 term was ending, the U.S. Supreme Court granted certiorari in National Labor Relations Board v. Noel Canning, Docket No. 12-1281, agreeing to consider the scope of the president's recess appointment power. The stakes are high. The NLRB is appealing a January decision by the U.S. Court of Appeals for the D.C. Circuit that nullified three temporary appointments to the board by President Obama on January 4, 2012, which in turn may nullify more than 1,250 NLRB decisions dating back to August 2011. Beyond the NLRB, the court's decision in this case could impact actions taken by the Consumer Financial Protection Bureau, whose director also was appointed by Obama on January 4, 2012, and could have broad implications for staffing the highest levels of the executive branch in any administration.
As Don Corleone asked the heads of the Five Families he summoned to a meeting after they shot Sonny on the causeway, "How did things ever get so far? … It was so unfortunate, so unnecessary." Both the president and members of the Senate should ask themselves the same question. Their political bickering over nominees over the past 25 years has caused them to cede to the judiciary the ability to define the scope of their divided constitutional authority over the appointment and confirmation process.
