The United States Supreme Court agreed yesterday to hear a case—National Labor Relations Board v. Noel Canning—that challenges the validity of three appointments President Obama made to the NLRB.
Obama made the appointments under the Constitution’s recess appointment power but while the Senate was not formally in recess. The lower court had ruled that the NLRB appointments were unconstitutional because the Senate was not actually in recess at the time and that recess appointments could only be made between sessions of Congress.
The NLRB recess appointments were made on the same day and in the same manner as Obama’s recess appointment of Richard Cordray as director of the CFPB. Some analysts have said that if Cordray’s appointment is found to be invalid, the validity of the CFPB’s rulemaking since his appointment in January 2012 might also be challenged.