Noel Canning v. NLRB: Should Courts Police the Recess Appointments Power?
“Differences between the President and the Congress are commonplace under our system. The differences should, and almost invariably do, turn on political rather than legal considerations. The Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse.”
- Justice Lewis Powell
In Noel Canning v. NLRB, the Supreme Court appears poised to decide an issue with potentially profound consequences for the dynamics of executive-legislative interaction—namely, the scope of the President’s recess appointments power. In January 2013, a panel of the U.S. Court of Appeals for the District of Columbia Circuit invalidated President Obama’s January 2012 recess appointments for three members of the National Labor Relations Board (NLRB). The panel unanimously concluded that the recess appointments power was available to presidents only between session of Congress. Two of the three judges went further. They interpreted the recess appointments power as applying on to the offices that first became vacant between sessions of Congress. The first of these holdings calls into question the legality of innumerable actions by well over 300 federal officials who, since 1981, received recess appointments during congressional sessions. The second holding would likely invalidate most of the more than 300 additional recess appointments that presidents since Reagan have made between congressional sessions.
