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New Recess Appointments Case Roils NLRB and CFTC

BY James Ching
February 26, 2013

On Jan. 25, the DC Circuit issued an opinion, Noel Canning v. NLRB, No. 12-1153, slip. op. (DC Cir. 1/25/13), which stated that the Senate's current practice of never going into recess and instead being in recess pro forma until the next session barred the President from making recess appointments simply because no recess ever existed.

Noel Canning

is an exercise in the literal meaning of the words of the Constitution. The Constitution provides that the President shall nominate, and with the advice and consent of the Senate, appoint federal officers. See U.S. Const. art. II, ' 2, cl. 2. The President attempted to make three recess appointments to the NLRB after the Senate had agreed to continue its first session pro forma from Dec. 20, 2011 through Jan. 23, 2012, with Jan. 3 as the beginning of its second session.

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