The U.S. Supreme Court on Monday granted Senate Republicans argument time on Jan. 13 when the justices hear historic debate over the constitutionality of President Barack Obama's recess appointments to the National Labor Relations Board.
As a result, the argument in NLRB v. Noel Canning will run 90 minutes instead of the usual 60. Miguel Estrada of Gibson, Dunn & Crutcher had asked the court on November 25 for additional time on behalf of his client Sen. Mitch McConnell, (R-Kentucky) and 44 other senators who object to Obama's appointments. He will have 15 minutes, in addition to the 30 minutes allotted to Noel Francisco of Jones Day, who represents the appellee Noel Canning company, a Pepsi bottler from Yakima, Washington. For balance, the court extended the government's argument time from 30 to 45 minutes, for a total of 90.
In seeking the extra time, Estrada told the court that the senators have "incomparable interest in the constitutional issues involved," and an "unmatched stake" in defending the Senate's prerogatives to establish its own procedures, including when to adjourn. The senators should be given the opportunity, Estrada said, to describe the "adverse separation-of-powers consequences of allowing the Executive to seize control of congressional procedure."
Francisco told the court he agreed with giving the senators argument time, so long as it did not cut into his allotted half hour. His side needed 30 minutes, he said, to give "a full and complete presentation of its position."
The bottler challenged an adverse ruling by a panel of the NLRB, two of whose three members had been appointed by Obama during a brief Senate recess in early 2012. The company asserted that the decision was invalid because the recess appointments were unconstitutional, and the U.S. Court of Appeals for the D.C. Circuit agreed.
The Constitution's recess-appointment clause gives the president "power to fill up all Vacancies that may happen during the Recess of the Senate." It has become an important tool for presidents to fill vacancies in the face of delay or opposition by the Senate.
The court will decide whether "happen" means just the vacancies that begin during a recess, or if it includes vacancies that already exist when a recess begins. The court is also being asked to decide whether a brief intrasession recess qualifies under the clause, or whether "the recess" mean just the official recess between enumerated sessions of Congress.