Yes. I predict SCOTUS will at least narrow the ruling to the issue of whether Obama exceeded his authority by ignoring the sham “gavel in/gavel out” pro forma sessions. Otherwise, the courts will have effectively nullified the recess appointments clause. John Yoo agreed that the court went too far, but he blamed Obama’s aggressiveness on the issue for provoking the court to get involved in the first place. It’s a bit like blaming a rape victim for dressing too provocatively.

Even a narrowed down ruling on that question, if it goes against Obama, would nullify the recess appointment authority. Inter-session recesses are already pretty much a thing of the past. Congress schedules its breaks intra-session, which is why presidents of both parties have relied on the intra-session recess appointments. Democrats created a Frankenstein when they started the pro forma session nonsense. Now, the shoe is on the other foot and being used against them.

Democrats invented the pro forma session, just as the Dixiecrat Democrats historically were the party associated with the filibuster. However, the Republicans always seem to be more ruthless and talented at using both the filibuster and the pro forma session. Harry Reid was too wimpy to reform the filibuster when he had the chance. Watch. When Republicans get the Senate majority, they won’t be so wimpy about dumping the filibuster.

You never can tell.

What made the Obama NLRB appointments different is that he pushed the envelope on intra-session recess appointments by ignoring the Republican pro forma sessions, where a lone Senator gavels in for just a minute every three days during the recess for the specific purpose of preventing a recess appointment.

The all-Republican 3-judge Appeals Court panel should have limited its review to that issue. Instead, they used the opportunity to make a much broader ruling that, if upheld by the Supremes, will virtually eliminate the ability of any president to ever again make a recess appointment as provided for in the Constitution. Similar to the Citizens United decision, the D.C. Appeals court went way beyond the scope of the case before it.

In the specific case of the NLRB appointments, Senate Republicans forced Obama’s hand by blocking the Senate from performing its Advise and Consent responsibility. This wasn’t a matter of them not liking the people Obama nominated for the open seats. The goal was to nullify the NLRB as an agency, since the NLRB cannot make decisions without a quorum.