ACS will conduct its annual Supreme Court review tomorrow covering most of the high-profile cases that have come down this term and looking ahead to Monday when more opinions are expected. We are still waiting for opinions in Sebelius v. Hobby Lobby, regarding the contraception policy of the Affordable Care Act, and Harris v. Quinn, a case involving a First Amendment challenge to union representation of state home care workers.
The high court today issued opinions in NLRB v. Noel Canning, involving the president’s recess appointments power, and McCullen v.Coakley, centering on a First Amendment challenge to a Massachusetts law creating buffer zones around abortion clinics.
SCOTUSblog publisher Tom Goldstein, who will moderate tomorrow’s ACS Supreme Court Review, said of Noel Canning during live-tweeting at SCOTUSblog this morning:
Here is the upshot of the decision. The President can make a recess appointment without Senate confirmation when the Senate says it is in recess. But either the House or the Senate can take the Senate out of recess and force it to hold a "pro forma session" that will block any recess appointment. So while the President's recess appointment power is broad in theory, if either house of Congress is in the hands of the other party, it can be blocked.
Eric J. Segall, the Kathy and Lawrence Ashe Professor of Law at Georgia State University College of Law, also a panelist for tomorrow’s high court review, told ACSblog, “When is a recess not a recess? When it’s less than 10 days. Justices issue a mixed ruling in NLRB v. Noel Canning.”
Chief Counsel for the Constitutional Accountability Center Elizabeth Wydra in press statement said, “While the Supreme Court voted unanimously to strike down the particular exercise of the Recess Appointments Clause power in the Noel Canning case, more important, the Court – by a sharply divided 5-4 vote – rejected the sweeping arguments made by the U.S. Chamber of Commerce and its allies.” (Wydra is also scheduled to participate in tomorrow’s ACS Supreme Court Review.)
The U.S. Court of Appeals for the District of Columbia Circuit ruled early last year that President Obama’s appointments to the National Labor Relations Board in early 2012 during “pro forma sessions,” where Congress took deliberate steps to shorten the period for the president to make recess appointments. The president took the action noting that the 5-member NLRB could not function with three languishing vacancies.