Noel Canning Cert. Grant

As John noted, the Court unsurprisingly granted cert. in Noel Canning.  The interesting facet is that the Court added a third question: “Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.”  One suspects that the reason for this was that it provides the Court with an avenue–should it wish–to affirm the case on narrow grounds without engaging in a far-reaching challenge to recess appointment historical practice that had developed over time.  The Court could, if it chose, simply say that as a matter of a law if the Senate convenes every three days in a pro forma session then that is sufficient to qualify as a non-recess.

Having said that, I remain of the view that the Court might not shy away from the larger structural issues here.  I refer the reader to the Court’s approach in Stern v. Marshall a few years ago, in which the Court could have construed the relevant bankruptcy jurisdictional provision sufficiently narrowly so as to avoid the constitutional issues.  Instead, the Court read the statute to its full scope and then struck down that reach as unconstitutional.

Nevertheless, the addition of this third question in Noel Canning leaves open the narrow avenue.