Obama's Recess Appointments: Constitutional or Not?
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Obama's Recess Appointments: Constitutional or Not?

The U.S. Supreme Court on Monday agreed to hear a closely watched case involving the National Labor Relations Board that raises fundamental questions about the authority of the U.S. president to make appointments without Senate approval.

In the court's next term, starting in October, the court will consider whether three appointments President Barack Obama made to the board in January 2012 were invalid because the Senate was not technically in recess at the time. The case, which involves weighty constitutional issues that are the constant subject of political battles between Congress and the White House through different presidential administrations, addresses what is known as "recess appointments."

That refers to when a president makes an appointment - while senators are in recess - to a position otherwise requiring Senate approval, often naming an appointee who would have had trouble winning Senate confirmation. The U.S. Court of Appeals for the District of Columbia Circuit ruled in January that the appointments to the panel, which normally has five members, were invalid.

The appeals court agreed with Noel Canning, the bottling company that challenged Obama's move, in finding that the president did not have the authority to make the appointments. The U.S. Constitution allows the president to make appointments when the Senate is in recess. Such appointments expire at the end of the congressional session.

In Monday's brief order announcing it was hearing the case, the court asked the parties to address an additional question on whether the president can make recess appointments when the Senate convenes every three days for so-called pro-forma sessions. Backed by the U.S. Chamber of Commerce, Noel Canning argued that an NLRB ruling against it was invalid because of the appointments, which meant the board lacked a quorum.

Obama made his NLRB appointments on January 4, 2012, when the Senate was in session but not conducting business. The congressional session began on January 3, according to the Senate website. Presidents from both parties have used their recess appointment authority to make appointments when the Senate is not conducting business. The appeals court ruling also raised questions about the validity of Obama's appointment of Richard Cordray to run the Consumer Finance Protection Board, which was made on the same day as the three NLRB appointments.

The case is NLRB v. Canning, U.S. Supreme Court, No. 12-1281.

This article is from Lawrence Hurley of Reuters.