Are certain presidential recess appointments constitutional?

In 2012, President Barack Obama named three people to the National Labor Relations Board (NLRB) while the Senate was not working but instead was in “pro forma” session.

The three seats had been vacant a long time, because the Senate had not approved the nominations when it was in session.

With the requirement of a 60-vote supermajority in place, Senate Republicans had blocked the president’s previous nominees, thus leaving the labor board unable to do business.

After Obama filled the positions, the NLRB acted on a court ruling from Washington state — that the Noel Canning company had violated a contract with its union employees.

Noel Canning of Yakima, Wash., took its case to the D.C. Circuit Court of Appeals saying the NLRB appointments were unconstitutional, so the board had no authority to act. The circuit court agreed, and the NLRB appealed, which landed the case in the Supreme Court on Monday.

"This was a very clear attempt ... to clearly put into place officials the Senate wouldn’t confirm," said Noel Francisco, Noel Canning’s attorney.

The Supreme Court's decision could radically alter the balance of power between the Senate and the president. On the one hand, it could agree with the administration and determine that the president can make recess appointments at any Senate break — which would render “advise and consent” a thing of the past.

Or it could rule that the Senate could continue to block appointments to Cabinet posts and federal judgeships by using its rules to prevent all recesses — even during weeks-long breaks — thereby withholding consent.

Noel Canning and Republican amici ("friends of the court") argue that a true recess happens only between formal sessions of the Senate. Presidential appointments should fill vacancies only during that time.

Historically, presidents from both parties have made recess appointments, sometimes to install officials who would otherwise have a difficult time in the Senate confirmation process.

The Supreme Court case has been given an unusually lengthy 90-minute oral argument time. That's 30 minutes more than the usual high court case.

In the coming months, the court will hear from the lawyers representing both sides and from 45 Republican senators concerned about presidential overreach.

Are pro forma confirmations presidential overreach?

We spoke to a panel of experts for the Inside Story.

The above panel was assembled for the broadcast of "Inside Story" to discuss.

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