TCP Hosts Web Forum on Recess Appointments

The Constitution Project recently launched an open Web Forum centered on NLRB v. Noel Canning (docket 12-1281), the Recess Appointments Clause, and, more broadly, the relative merits of political compromise and judicial resolution. We will be posting essays by contributors and will accept submissions on a rolling basis through September 15th.

Noel Canning, which the Supreme Court will take up next term, is a challenge to the constitutionality of three recess appointments made by President Obama to the National Labor Relations Board in January, 2012. At the time, the White House said these appointments were being made in accordance with the president’s “Power to fill up all Vacancies that may happen during the Recess of the Senate.” Shortly after these appointments, an NLRB panel with two of the new members affirmed a decision in a labor dispute involving Noel Canning, a Pepsi bottling facility in Yakima, WA. Noel Canning challenged that decision on the ground that the January 2012 appointments were invalid and thus, the Board lacked the quorum necessary to render a valid decision. In a sweeping decision that surprised some, the DC Circuit agreed, holding that the Recess Appointments Clause applies only to inter-session recesses and that it can be used to fill only those vacancies that arise during the recess itself. The NLRB appealed the decision to the U.S. Supreme Court.

Not long after the Court granted certiorari earlier this year, the political branches took their own actions that may have altered the legal landscape considerably. As part of a broader compromise within the Senate, President Obama withdrew the nominations of the two board members remaining from the January 2012 appointments and nominated two different board members, whom the Senate quickly confirmed through the normal process.  This shift triggers a host of questions, including whether and how it changes what the Court should do, and whether it ought to alter the relief sought by the parties.

As the Supreme Court prepares to consider this case, TCP seeks to foster a dialogue on both the underlying constitutional issues as well as the broader implications of Noel Canning as a case study in modern separation-of-powers disputes. To this end, we welcome submissions offering a variety of perspectives and we will post contributions on a rolling basis. We also plan to host an in-person roundtable on the issue sometime this fall.



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