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Supreme Court Grants Review in Recess Appointments Challenge

Posted in Employment, U.S. Supreme Court

We’ve been reporting on the constitutional challenge to President Obama’s recess appointments to the National Labor Relations Board, which has serious implications for the recess appointment of Consumer Financial Protection Bureau head Richard Cordray. Yesterday, the Supreme Court granted the government’s unopposed petition for a writ of certiorari from the D.C. Circuit’s decision in Noel Canning v. NLRB.

The Court granted review of three questions:

  • 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.
  • 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.
  • Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.

The government’s certiorari petition had raised the first two questions; the third was suggested by the respondent.