Argument should be heard next term.
In a brief order agreeing to review the issue, the justices also asked the Obama administration and a challenger of his recess authority "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 which no business is done.
Presidents since George Washington have made recess appointments, usually in the interest of allowing the government to function with key personnel. In modern times presidents have used recess appointments to avoid political fights in the Senate.
As the Democrats did earlier, Senate Republicans kept the Senate in pro forma session to avoid recess appointments. President Barack Obama opted to challenge the practice in January 2012 when some Republican senators were holding pro-forma sessions while the Senate technically was on a 20-day recess.
When Obama moved ahead with three appointments to the National Labor Relations Board that Republicans considered too labor-oriented -- Sharon Block, Terence F. Flynn and Richard F. Griffin Jr. -- Noel Canning, a Pepsi bottling and distributing company official in Washington state, took the board to court after it ruled against the company in a union dispute, challenging the board's legitimacy.
At the time, the NLRB had five purported members, two who had taken their seats before the controversy and the three Obama recess appointees.
The case eventually landed in the U.S. Court of Appeals for the D.C. Circuit. A three-member appeals court panel led by the conservative U.S. Circuit Judge David Sentelle ruled in the Noel Canning case the NLRB's decision was invalid "as it did not have a quorum" because of the invalidity of the recess appointments.
Normally, the president appoints high officers of the government with the "advice and consent" of the Senate. But the Constitution's recess clause says, "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 [the Senate's] next session."
The appeals court panel also rejected the U.S. Justice Department's assertion the president himself has the "discretion to determine when the Senate is in recess. ... This will not do," the panel said. "Allowing the president to define the scope of his own appointments power would eviscerate the Constitution's separation of powers."