The Constitutional standing of President Barack Obama’s National Labor Relations Board recess appointments heads into murky waters as the Supreme Court heard the oral arguments in the NLRB v. Noel Canning case on Monday morning.

Early indications show that the court may be skeptical of the president’s decision to make three appointments by overstepping the Senate’s pro-forma session in 2012, according to Lyle Denniston of SCOTUSblog.

Perhaps the most unfortunate moment for presidential authority was a comment by Justice Stephen G. Breyer that modern Senate-White House battles over nominations were a political problem, not a constitutional problem.  Senators of both parties have used the Constitution’s recess appointment provisions to their own advantage in their “political fights,” Breyer said, but noted that he could not find anything in the history of the clause that would “allow the president to overcome Senate resistance” to nominees.

Previous decisions have already placed Obama’s appointments in peril with the D.C. Circuit Court of Appeals ruling them unconstitutional in January 2013, and the Third Circuit doing the same in May.

Credit - Flickr user functoruser
Credit – Flickr user functoruser

Like in the previous cases, the Supreme Court’s decision hinges on how they define the Senate’s recess, writes Proskauer Partner Ronald Meisburg, who served as general counsel at the NLRB from 2006 to 2010. In Monday’s hearing, Obama appointee Justice Elena Kagen said that “it really is the Senate’s job to determine whether they’re in recess or whether they’re not.”

The implications of this case goes beyond the president’s Constitutional power and could potentially undermine the NLRB’s 2012 decisions. Sara Eber of Seyfarth Shaw explains that “if the Supreme Court affirms the D.C. Circuit’s decision (that the appointments were invalid), it leaves vulnerable over 200 cases decided by the NLRB since the recess appointments were made, and potentially invalidating all of those 200+ cases.”

Among the 200 cases are the NLRB’s numerous rulings on private sector employers’ social media enforcement.

Regardless of what the court rules, Meisburg wrote that the NLRB’s decisions will have to be reviewed, but if Supreme Court sides with the Third Circuit and D.C. Circuit, as oral arguments signal it may, it could put the validity of many cases in jeopardy:

…it is likely all of the pending cases will be … returned to the Board for re-decision.  Unlike the two member Board, however, which decided all of its cases based on settled, existing law (thus avoiding the overruling of prior decisions or creation of new precedent), many of the cases decided by the current Board were very contentious and controversial.  This may result in fewer simple adoptions and possibly more reversals on remand, depending on the make-up of the Board at the time.

In a previous interview with LXBN TV, Mark Theodore of Proskauer said that a ruling against the appointments will result in “turmoil” because “this Board made a lot of other decisions. They appointed regional directors, those regional directors made decisions so there’s a cascade effect. Is it overblown? It’s probably not as bad as everyone says it is, but it’s pretty unstable.”

There is also the issue of partisan politics in this outcome since Noel Canning is supported by Senate Republicans, notes Alexander Fullman for Constitution Daily.

The issue of recess appointments has also become far less pressing since the Senate’s decision to eliminate the filibuster with respect to executive and judicial branch nominees (except for Supreme Court nominees). So long as Democrats hold the majority in the Senate, President Obama’s nominees can no longer be obstructed by Republican filibusters, thereby eliminating the need for the president to use recess appointments as a means of circumventing the Senate. If, however, Republicans wrest control of the Senate from the Democrats in the 2014 midterm elections, then President Obama would be unable to use recess appointments to fill vacant posts if Republicans prevented his nominees from being seated, in which case the Supreme Court’s decision in Noel Canning would substantially impact his ability to appoint federal officials to serve during the final two years of his presidency.

A decision by the court is not expected until the end of this session in June 2014, but if the NLRB sees the oral arguments as an indication of how the court might sway, they may back proactive moves in the coming months.