Mooting Noel Canning?
No, I don’t mean running practice sessions for the oral argument. There is a story today that Senate Democrats want to change the rules to bar filibusters of executive branch nominees. (I’m all for cloture reform, as I’ve explained many times here.) Part of that plan (or bluff) involves the confirmation of all of the President’s nominees for the vacancies on the NLRB. These are the same vacancies that the President filled with recess appointments last year and were declared unconstitutional by the Third and D.C. Circuits.
Here’s my question. Suppose the Senate does confirm these people. Can they then confirm retroactively all of the decisions made by the recess appointees? (Since I think the recess appointees and the nominees are the same, it would be confirming their own decisions.) If so, then that would moot the appeal from the D.C. Circuit on which the Supreme Court granted certiorari.