Have either of you made a prediction on the NLRB case before SCOTUS? It seemed that the Obama Admins main case was the inconvenience of undoing so many decisions. I didn’t see any strong Constitutional arguments made, but I felt that way about the ACA.
That the President can't tell the Senate that it's in recess when it says it isn't is a no-brainer: I wouldn't be surprised to see 8 or even 9 votes to overturn the appointments on that ground.
The broader ground which has been argued is that, even when the Senate is in recess, the President can appoint someone only if the vacancy happened during that recess. The text of the Constitution literally says that, but every President since Andrew Jackson (really) has ignored that limitation. If the Court decides on that ground, then the whole Recess Appointment power becomes essentially a nullity. (And, as the Obama Administration has pointed out to the Court, that means that Dwight Eisenhower's appointment as the General of the Armies in WWII was illegal.)
SCOTUS has historically held that the Senate and House have the power to establish and enforce the rules of their respective chambers. So if the Senate considered itself “in session,” I suspect the Court will defer to the Senate’s rules and procedures on the question of whether or not the Senate was in recess.
That being said, I predict that the Court will rule narrowly here and find only that the three 2012 NLRB appointments were unconstitutional because Noel Canning’s claim that the NLRB ruling against it is invalid is predicated on the argument that three of the five NLRB members were unconstitutionally appointed. I don’t believe Noel Canning is asking the Court to rule on any other unconstitutional appointments.
Who knows what SCOTUS will actually do. Lately their rulings have made for very strange bedfellows indeed. When Scalia and Thomas are on opposing sides and Sotomayor sides with Scalia, it becomes impossible for a novice like me to venture an educated guess.