(CN) - President Barack Obama's recess appointments, which were deemed unconstitutional, will go before the Supreme Court this fall, the justices said Monday.
Obama made the appointments to National Labor Relations Board (NLRB) last year while the Senate was conducting "pro-forma" sessions.
It is understood that legislators will not actually conduct business during a pro forma session, which came into vogue during the administration of George H.W. Bush and has been used since by both parties.
In practice, the Senate is gaveled to order, then immediately adjourned.
With three of five slots on NLRB vacant during a pro forma session in January 2012, Obama appointed Deputy Labor Secretary Sharon Block, labor lawyer Richard Griffin and NLRB counsel Terence Flynn to the board.
Senate Republicans had been blocking consideration of two of these nominations.
The D.C. Circuit had deemed
the appointments invalid while looking at the challenge to a labor board finding brought by Noel Canning, a soft drink bottler in the Pacific Northwest.
Thought the court found that evidence supported the board's decision against Canning, it said Obama's definition of recess would effectively give him "free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction."
Writing for the panel, Judge David Sentelle said "the appointments structure would be turned upside down."
Recess appointment power is limited to the period when the Senate has formally ended a two-year session and not begun the next session, according to that ruling.
It said Obama's appointments actually occurred during an intrasession adjournment, a kind of "legislative break" that the Constitution purportedly differentiates from actual recess.
The Supreme Court said Monday it will review the D.C. Circuit's ruling and determine whether "the president's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions."
Since the board must have a quorum of three to issue a ruling, affirming would invalidate every decision issued by the NLRB since the recess appointments. It would also leave the NLRB with only one validly appointed member.