At long last, the Supreme Court's opinion in NLRB v. Noel Canning is here! It's a long opinion and will take some time to analyze, but here's my first take: The Court is unanimous in concluding that Obama's NLRB recess appointments were unconstitutional - he lacked the authority under the recess appointments clause to make the appointments.
However, there is a 5-4 split with the liberal bloc plus Kennedy in the majority. The majority gives the president a broad recess appointment power, allowing intrasession appointments during brief breaks. However, even under that broad interpretation, President Obama's appointments during the 3-day break between pro forma sessions of the Senate in this case was not sufficient.
Justice Scalia drops a great insult early in his dissent, calling the majority opinion an "adverse possession theory of executive authority." The dissent basically states that the vacancy must occur during the recess between formal Senate sessions and the appointment must likewise occur during such a recess. The fact that presidents have ignored these requirements for years does not make intrasession recess appointments okay. I'm looking forward to really digging through this one.
Read additional employment law articles on Philip Miles’ blog, Lawffice Space.
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