Yesterday, I queried what the Supreme Court would think about the D.C. Circuit’s interpretation of the recess power. We may have a clue.
In New Process Steal v. NLRB, Chief Justice Roberts and Neal Katyal talked about the recess power. Roberts seemed to endorse the recess appointment power as a way to break the NLRB’s political holdups.
JUSTICE SCALIA: Do — do we have any notion when — when the board will reduce to one? (Laughter.)
JUSTICE SCALIA: When — when — when is one of the two’s term over?
MR. KATYAL: In the absence of any further confirmations or other appointments, one of the members, Member Schaumber, will leave on August 27th of this year.
JUSTICE SCALIA: Of this year. At which point there will be some pressure on Congress, I guess, right?
MR. KATYAL: There will. JUSTICE GINSBURG: There are — there are two nominees, are there not?
MR. KATYAL: There are three nominees pending right now.
JUSTICE GINSBURG: Three?
MR. KATYAL: Yes. And they have been pending. They were named in July of last year. They were voted out of committee in October. One of them had a hold and had to be renominated. That renomination took place. There was a failed quorum — a failed cloture vote in February. And so all three nominations are pending. And I think that underscores the general contentious nature of the appointment process with respect to this set of issues.
CHIEF JUSTICE ROBERTS: And the recess appointment power doesn’t work why?
MR. KATYAL: The — the recess appointment power can work in — in a recess. I think our office has opined the recess has to be longer than 3 days. And — and so, it is potentially available to avert the future crisis that — that could — that could take place with respect to the board. If there are no other questions -
CHIEF JUSTICE ROBERTS: Thank you, counsel.
The Chief Justice would not seem to endorse the D.C. Circuit’s reasoning.
H/T Steve R.