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Topics: Labor Unions

Does the filibuster change rob SCOTUS' upcoming recess appointments case of importance?

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Beltway Confidential,Sean Higgins,Labor unions,Senate,President,Supreme Court,Harry Reid,NLRB,Analysis,Filibuster,Law,Presidential Nominees

Senate Majority Leader Harry Reid's, D-Nev., action to end the Senate filibuster may not only help speed President Obama's judicial and executive branch nominations through Congress, it may also take much of the drama out of one of the Supreme Court's most anticipated cases, Noel Canning v. NLRB. Oral arguments in the case are set to be heard January 14.

The case involves whether President Obama overstepped his executive authority by making three recess appointments to the National Labor Relations Board in early 2012 despite the fact that the Senate was technically not in recess. These appointments were made in the first place to circumvent the regular Senate approval process because administration officials presumed the nominees would be filibustered by Republicans.

The nominees were never filibustered. The Senate never even had time to hold hearing on the them. The recess appointments were made just three weeks after the nominations were announced.

The administration has fought all the way to the Supreme Court to defend the action. It has argued that the executive branch, not the Senate itself, can determine when the Senate is in recess. This stance could theoretically allow the president to appoint nominees any time the Senate gavels out. The question has very few constitutional law precedents and is expected to set a significant marker regarding the balance of powers doctrine.

Reid's action though would eliminate the White House's current need to make recess appointments. Since Democrats currently hold a majority in the chamber, that is all that would be needed under the rule change to push Obama's nominees through. As Volokh Conspiracy blogger John Elwood noted, many of Obama's nominees had majority support, just not supermajority support.

The case would still be relevant to future scenarios when the president and Senate majority are held by different parties, though.

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