Emergency powers broadly refers to the authority given to individuals in the executive to act outside the traditional bounds of their authority in order to react to a danger that normal channels for approval could not address. The most important emergency powers are those given to the President through the National Emergencies Act.
In February 2012, the National Labor Relations Board ("NLRB") upheld a ruling that the soft-drink bottler Noel Canning had violated the National Labor Relations Act ("NLRA"). Noel Canning argued that the NLRB decision was invalid because, at the time, the NLRB had lacked the minimum number of officials required to enforce the NLRA. Specifically, Noel Canning argued that President Obama, in January 2012, had improperly appointed three of the NLRB’s members under the Recess Appointments Clause. The Supreme Court will determine (1) whether the Recess Appointments Clause authorizes the President to make appointments for vacancies that do not arise during a Senate recess and (2) whether the President can exercise the power between pro forma sessions or only during breaks between enumerated sessions. While the NLRB argues that a narrow reading of the Recess Appointments Clause threatens the executive branch’s ability to pragmatically overcome Senate delays in approving nominees, Noel Canning counters that the President cannot exercise the recess appointment power to fill vacancies that did not arise during breaks between enumerated sessions. The Court's ruling will affect the President’s ability to appoint officials without the Senate’s approval during pro forma recesses. The Court’s decision could invalidate earlier executive appointments (and government actions arising from those appointments) that have been made under the Recess Appointments Clause.
The Recess Appointments Clause of the Constitution provides that "[t]he 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." Art. II, § 2, C1. 3. The questions presented are as follows:
Note: In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.
In January 2013, the D.C. Circuit Court of Appeals held that a February 2012 decision by the National Labor Relations Board (“NLRB” or “the Board”) was invalid because the Board did not have a sufficient number of board members to act at the time. See Noel Canning v. NLRB, 705 F.3d 490, 492-93 (D.C. Cir. 2013).
