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This term, the U.S. Supreme Court is set to decide three cases posing difficult questions about the limits of the powers of each of the three branches of the federal government.

Executive Power

One case that has already received significant public attention is National Labor Relations Board v. Noel Canning, No. 12-1281, a dispute about the president’s recess appointments power. The Constitution provides that “the president shall have power to fill up all vacancies that may happen during the recess of the Senate.” In December 2012, without adjourning its first session of the 111th Congress sine die, the Senate adjourned for a 20-day period while continuing to conduct brief pro forma sessions every three days. During one of those three-day gaps, President Obama appointed, among others, three members of the National Labor Relations Board (NLRB). No president had ever previously made a recess appointment during a Senate session while the Senate had adjourned for less than 10 days.

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