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In its new term, the Supreme Court of the United States will consider National Labor Relations Board v. Noel Canning, a challenge to President Barack Obama’s January 4, 2012, recess appointments to fill three National Labor Relations Board (NLRB) vacancies. At the time of these appointments, every three days, the Senate was conducting pro forma sessions during which no business is ordinarily conducted.
Today, the U.S. Court of Appeals for the Third Circuit vacated a decision of the National Labor Relations Board (NLRB) on the basis that board member Craig Becker had been appointed in violation of the Constitution.
The Supreme Court of the United States begins its next term on October 7, 2013. The 2012 term was marked by a series of high-profile civil rights cases: a challenge to the Voting Rights Act coverage formula, a case dealing with racial preferences in higher education, Arizona’s proof of citizenship voter registration requirement, and, of course, the long-awaited same-sex marriage cases. With a number of cases involving the Fourth Amendment, from drug-sniffing dogs to warrantless blood tests, the Court did little to clarify the murky waters of Fourth Amendment jurisprudence.
President Obama stated that he made ‘recess’ appointments to the Consumer Financial Protection Bureau and National Labor Relations Board pursuant to the Constitution, but this ignores the history and original meaning of the Recess Appointments Clause.
Editor's Note: Between various presidential nominations now bottled up in the U.S. Senate, and now the intense focus on a nomination to the United States Supreme Court, there have been numerous musings about presidential nominations, the advice and consent of the Senate, and the appointment of judges of the Supreme Court and other officers of the United States. This essay by constitutional scholar John McGinnis of Northwestern University School of Law considers in close detail what the Constitution actually says and means on this matter.
I’m very grateful for the opportunity to speak about the Recess Appointments Clause today. In the small town of Alpine, Utah, where I live, we speak of little else. It is of great interest to those of us who watch the Supreme Court to see this case get teed up.
With the Supreme Court on summer recess, it's time to review the biggest cases of the October 2013 docket. SCOTUSblog's "Stat Pack" notes that the Court this term had a high degree of unanimity and a relative lack of 5-4 decisions. But by margins both large and small, the court issued a number of important cases.