By Lawrence Hurley and Amanda Becker
WASHINGTON (Reuters) - The Supreme Court on Monday agreed to hear a case involving the National Labor Relations Board that raises fundamental questions about the authority of the U.S. president to make appointments without Senate approval.
The so-called recess appointments have been increasingly used over the past several decades by presidents from both major political parties to appoint a candidate who would likely have trouble winning U.S. Senate confirmation.
In the court's next term, starting in October, the nine justices will consider whether three appointments President Barack Obama made to the board in January 2012 were invalid because the Senate was not technically in recess at the time.
The U.S. Court of Appeals for the District of Columbia Circuit ruled in January that the appointments to the panel, which normally has five members, were invalid because they were made after a new Senate session had started. The court said the president does not have the authority to make so-called "intrasession" appointments during breaks in Senate sessions when no business is being conducted.
The Obama administration, which asked the court to hear the case, said in court papers that there is a lengthy precedent for presidents making such appointments.
"The limitations imposed by the court of appeals would render many of the recess appointments since the Second World War unconstitutional," Solicitor General Donald Verrilli wrote.
The U.S. Constitution allows the president to make appointments when the Senate is in recess. Such appointments expire at the end of the congressional session. Presidents from both parties have used their recess appointment authority over the years.
According to a June report by the Congressional Research Service, Obama has made 32 recess appointments to full-time positions, President George W. Bush made 99 recess appointments to full-time positions and President Bill Clinton made 95 recess appointments to full-time positions. Obama and Clinton are Democrats, Bush a Republican.
There have been 329 intrasession recess appointments since the beginning of President Ronald Reagan's first term, the research service said in February.
In Monday's order announcing it was hearing the case, the Supreme Court asked the parties to address an additional question on whether the president can make recess appointments when the Senate convenes every three days for so-called pro-forma sessions.
Obama appointed current NLRB members Sharon Block and Richard Griffin, along with a third member who has since left the board, on January 4, 2012, when the Senate was in session but not conducting business. The congressional session began on January 3, according to the Senate website.
The appointees have decided hundreds of cases since, along with NLRB Chairman Mark Gaston Pearce. Given vacancies on the five-member panel, if the January 2012 appointments are invalidated, any decisions made without at least three confirmed members may have to be reconsidered once the panel has a Senate-confirmed quorum.
The National Labor Relations Board is an independent federal agency formed to protect the rights of private-sector employees to join together to improve wages and working conditions, with or without a union.
QUESTION OF AUTHORITY
Both the Obama administration and Noel Canning, a Pepsi bottler backed by the U.S. Chamber of Commerce, urged the Supreme Court to take the case, given the uncertainty the appeals court ruling had created about the board's authority.
Noel Canning has argued that an NLRB ruling for the International Brotherhood of Teamsters, in a disagreement over failed contract negotiations, could not be enforced due to what it said were improper NLRB recess appointments.
The appeals court, which has the authority to enforce NLRB rulings, agreed with Noel Canning in finding that the president did not have the authority to make the appointments, though it found no reason to disagree with the outcome of the board's decision in the case.
As of mid-June, there were 53 NLRB cases on hold in the appeals court in Washington pending the outcome of the Noel Canning case, and 97 cases pending in federal appeals courts that cite the quorum arguments made in the case.
The Noel Canning ruling "threatens a significant disruption of the federal government's operations," and would "dramatically curtail" the president's authority, Verrilli wrote in the Obama administration's petition to the high court to hear the case.
Separately, Republican lawmakers have introduced legislation that would prevent the board from taking any action until questions about its decision-making authority are decided.
U.S. Senator Lamar Alexander, a Tennessee Republican who introduced a Senate version of the bill, said on Monday it was "good news for American workers and employers that the Supreme Court will rule on whether the Senate or the president decides when the Senate is in session."
The appeals court ruling also raised questions about the validity of Obama's appointment of Richard Cordray to run the Consumer Finance Protection Board, which was made on the same day as the three NLRB appointments.
Bank groups have urged Congress to restructure the CFPB with a bipartisan board instead of a single director.
"Today's Supreme Court announcement on the Noel Canning v. NLRB case is a reminder the CFPB operates under a continuing cloud of uncertainty for consumers and the industry," Consumer Bankers Association President Richard Hunt said in a statement.
The case is NLRB v. Canning, U.S. Supreme Court, No. 12-1281.
(Reporting by Lawrence Hurley and Amanda Becker with additional reporting by Emily Stephenson; Editing by Howard Goller and Doina Chiacu)