Sunday, June 4, 2023 | Back issues
Courthouse News Service Courthouse News Service

McConnell to Argue on Recess Appointments

(CN) - The Supreme Court will allow Senate Minority Leader Mitch McConnell (R-Ky.) to participate in the oral argument of a case challenging the president's recess-appointment power.

In granting McConnell's motion, the high court also announced this morning that it is expanding oral argument in the case, NLRB v. Noel Canning, to ninety minutes.

The case is scheduled to be heard on Monday, Jan. 13, 2014. On that day, the Justices will consider whether recess appointments that President Barack Obama made to the National Labor Relations Board (NLRB) in 2012 are unconstitutional.

Obama made the appointments to National Labor Relations Board (NLRB) while the Senate was conducting "pro-forma" sessions. It is understood that legislators will not actually conduct business during a pro forma session, which came into vogue during the administration of George H.W. Bush and has been used since by both parties.

In practice, the Senate is gaveled to order, then immediately adjourned.

With three of five slots on NLRB vacant during a pro forma session in January 2012, Obama appointed Deputy Labor Secretary Sharon Block, labor lawyer Richard Griffin and NLRB counsel Terence Flynn to the board.

Senate Republicans had been blocking consideration of two of these nominations.

The D.C. Circuit had deemed the appointments invalid while looking at the challenge to a labor board finding brought by Noel Canning, a soft drink bottler in the Pacific Northwest.

Though the court found that evidence supported the board's decision against Canning, it said Obama's definition of recess would effectively give him "free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction."

Recess appointment power is limited to the period when the Senate has formally ended a two-year session and not begun the next session, according to that ruling.

It said Obama's appointments actually occurred during an intrasession adjournment, a kind of "legislative break" that the Constitution purportedly differentiates from actual recess.

In June, the Supreme Court said it would review the D.C. Circuit's ruling and determine whether "the president's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions."

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.