AMID the coverage of the Christie controversy and the latest budget deal, it was easy to miss the news about last week’s oral arguments before the Supreme Court in the case of National Labor Relations Board v. Noel Canning. And yet the Canning case represents the biggest threat to presidential power in decades, and the stakes in the decision are extremely high.
The challenge began narrowly, centered on the question of whether a president or the Senate gets to decide when the legislative body is in recess. But it was broadened dramatically last year by a panel of the Court of Appeals for the District of Columbia Circuit, which ruled that virtually all recess appointments violated the direct language of the Constitution: Only those vacancies occurring during the recess between the two sessions of Congress, and only those filled during that recess, would be allowed. Because such recesses are very brief, the odds of a significant vacancy opening up during them are near zero.