The U.S. Supreme Court Justices seemed to be skeptical of the Obama administration’s position during Jan. 13 oral arguments in a case centering on the president’s ability to make recess appointments to the National Labor Relations Board, courts, and other government offices.

The case, NLRB v. Noel Canning, is significant for construction because it involves two appointments to the NLRB, the body that adjudicates labor cases important to construction firms and unions, that were invalidated as unconstitutional by the U.S. Court of Appeals for the District of Columbia in January 2013. The court said the appointments were invalid because the Senate was technically not in recess when the appointments were made.  Hundreds of cases decided while two appointees in question—Sharon Block and Richard Griffin—were serving on the board might have to be re-heard if the court were to uphold the appeals court ruling.

But Justice Antonin Scalia seemed to brush that concern aside. “You don’t really think we’re going to go back and rip out every decision made,” he said.

In his arguments, Donald Verrilli, Jr., solicitor general for the Justice Dept., said that if the justices ruled against the NLRB, they would be diminishing presidential authority “in a way that is flatly at odds with the constitutional structure the Framers established.”

If the court were to uphold the D.C. Circuit’s ruling, “You are really writing the recess appointment power [of the president] out of the Constitution, and that’s really antithetical to the liberty-enhancing properties of separation of powers…” he said.

Several of the justices questioned Verrilli’s stance. Justice Samuel Alito said, “You are making a very, very aggressive argument in favor of executive power now and it has nothing whatsoever to do with whether the Senate is in session or not. You’re just saying when the Senate acts, in your view, irresponsibly and refuses to confirm nominations, then the president must be able to fill those positions.”

Justice Elena Kagan said, “You’re asking us to peg this on a formality that the Senate could easily evade, and that suggests that it really is the Senate’s job to determine whether they’re in recess or whether they’re not.”

And Associate Justice Stephen Breyer said, “I cannot find anything, so far…that says the purpose of this clause has anything at all to do with political fights between Congress and the president.”

Noel J. Francisco, of Washington, D.C., argued on behalf of Noel Canning and other respondents; and Miguel Estrada, of Washington, D.C., argued on behalf of Senate Republican leader Mitch McConnell and a group of other lawmakers who filed an amicus brief in the case.