Justices to review recess picks case

Obama’s appointment power at issue

WASHINGTON - The Supreme Court on Monday agreed to decide whether President Barack Obama violated the Constitution last year when he bypassed the Senate in making three recess appointments to the National Labor Relations Board.

The court will review a January decision from a three-judge panel of a federal appeals court in Washington that ruled against the administration on very broad grounds, calling into question the constitutionality of many recess appointments by presidents of both parties.

The three appeals court judges agreed that presidents may avoid the usual Senate confirmation process only during the recesses between formal sessions of Congress, which generally happen once a year. Two of the judges went further and said that presidents may fill only vacancies that arose during that same recess.

If the Supreme Court agrees on both points, it would markedly narrow the president’s recess appointment power.

If Obama’s appointments to the labor board were not valid, that means the board lacked a quorum to make decisions, including one finding that Noel Canning, a softdrinks bottler, had violated the National Labor Relations Act by refusing to sign a labor contract it was said to haveagreed to orally.

The case is National Labor Relations Board v. Noel Canning, No. 12-1281.

Also Monday, the Supreme Court put new limits on lawsuits claiming on-thejob harassment, throwing out a case filed by a black catering worker who said a colleague slapped her and used racial epithets.

The justices, voting 5-4, said the purported harasser didn’t qualify as Maetta Vance’s supervisor, a status that would make it easier for the worker at Muncie, Ind.-based Ball State University to win her case.

In a second 5-4 ruling, the court made it harder for workers to win claims that their employer retaliated against them for complaining about discrimination.

The court was divided along the same ideological lines in both decisions. Voting in the majority were Chief Justice John Roberts and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel Alito. Dissenting were Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

The cases are Vance v. Ball State University, 11-556, and University of Texas Southwestern Medical Center v. Nassar, 12- 484.

Information for this article was contributed by Adam Liptak of The New York Times ; and by Greg Stohr of Bloomberg News.

Front Section, Pages 5 on 06/25/2013

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