The case, National Labor Relations Board vs. Noel Canning, is over whether the president acted legally when he made a series of temporary appointments to the National Labor Relations Board while the Senate was not conducting business but still gavelling in and out every day. Clause three of the Constitution’s section on presidential powers states that, “The president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”
At issue is if the president acted in poor faith by saying the Senate was not in session. Solicitor General Donald Verrilli argued that the Constitution is ambiguous on the subject.
“It’s been assumed to be ambiguous by self-interested presidents,” Scalia replied. After Scalia’s retort, the court room was filled with “oohs” and laughter, Talking Points Memo reports.
Since the National Labor Relations Board conflict, Senate Majority Leader Harry Reid has broken centuries of tradition by allowing Senate approval for appointments by majority vote, thereby making the case less consequential to Senate procedure. But if the Supreme Court rules against the White House, the board’s executive actions will no longer be valid.