The Supreme Court Unanimously Strikes Down NLRB Recess Appointments

By Patrick Scully and Jonathon Watson

The Supreme Court on June 26th issued the long-anticipated decision in NLRB v. Noel Canning, unanimously affirming the D.C. Court of Appeals’ decision declaring President Obama’s recess appointment of NLRB Members Griffin, Flynn, and Block invalid. Political analysts are vigorously debating the theoretical impact of the decision as we speak, ranging from assertions that this decision effectively guts the President’s ability to make recess appointments, to claims that the decision restores the separation of powers envisioned by the Founding Fathers. For our practical purposes, however, the decision means that hundreds of NLRB decisions now have to be reconsidered with a full, proper complement of the NLRB, and, looking forward, the current President and all who follow will find it more difficult to appoint Board members without the full advice and consent of the Senate.

Noel Canning arose out of a labor dispute where the NLRB found that Noel Canning had unlawfully refused to reduce to writing and execute a collective-bargaining agreement with a labor union. The Board, in Noel Canning, 358 N.L.R.B. No. 4 (2012), ordered Noel Canning to execute the agreement and to make employees whole for any losses.

The three members in question were Sharon Block, Richard Griffin, and Terence Flynn. In 2011, President Obama nominated each of them to the Board. As of January 2012, Flynn’s nomination had been pending in the Senate awaiting confirmation for approximately a year. The nominations of Block and Griffin had been pending for a few weeks. On January 4, 2012, the President, invoking the Recess Appointments Clause, appointed all three to the Board. Under the President’s reasoning, the Senate was in “recess” because on December 17, 2011, the Senate adopted a resolution providing that it would take a series of brief recesses beginning the following day. Pursuant to that resolution, the Senate held pro forma sessions every Tuesday and Friday until it returned for ordinary business on January 23, 2012. The President’s appointments were made between the January 3 and January 6 pro forma sessions.

Ordinarily the President must obtain “the Advice and Consent of the Senate” before appointing an “Office[r] of the United States.” But the Recess Appointments Clause of the Constitution creates and exception; it gives the President the power to “fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their Next Session.” As the Court noted in Noel Canning, “the Recess Appointments Clause sets forth a subsidiary, not a primary, method for appointing officers of the United States.” Further, “Presidents have made recess appointments since the beginning of the Republic.”

Noel Canning appealed the Board’s decision to the Court of Appeals for the District of Columbia and argued that the Board’s order should be set aside because three of the five Board members had been invalidly appointed, leaving the Board without the three lawfully appointed members necessary for it to act. The Court of Appeals agreed that the appointments fell outside the scope of the Recess Appointments Clause, and found that the Clause does not permit appointments that occur within a formal session of Congress, i.e. intra-session recesses. On appeal, the Supreme Court in Noel Canning, considered the scope of the Recess Appointments Clause and the validity of President Obama’s recess appointment of Board Members Griffin, Flynn, and Block. Specifically, the Court considered three issues:

  1. whether the Recess Appointments Clause includes only inter-session recesses (i.e. a break between formal sessions of Congress), or does it also refer to intra-session recesses (i.e. short breaks within a formal session of Congress);
  2. whether the President has the authority to make recess appointments for vacancies that occur before a recess begins and continue to exist during the recess; and
  3. whether the President’s recess appointment power may be exercised when the Senate convenes every three days as part of pro forma sessions.

With regard to the scope of the Recess Appointments Clause, the Supreme Court disagreed with the Court of Appeals and held that the Clause includes intra-session recesses, not just inter-session recesses. The Court, however, added that for recess appointments made during an intra-session recess to be valid, the recess must be of “substantial length.” Although, the Court did not clearly outline what constitutes a “substantial length,” it concluded “that a recess of more than 3 days but less than 10 days is presumptively too short to fall within the [Recess Appointments] Clause.”

With regard to the second issue, the Court concluded that the phrase “all vacancies that may happen during the recess of the Senate” should be interpreted to include vacancies that initially occur during the recess as well as those those that occur before a recess and continue during the recess. The Court based this conclusion on the Recess Appointments Clause’s purpose, stating that the “purpose is to permit the President to obtain the assistance of subordinate officers when the Senate, due to its recess, cannot confirm them.” Thus, according to the Court, this purpose would be upset if the President were unable to appoint officers when the position only became vacant during a Senate recess. Moreover, the Court found that the broader view is consistent with the traditional practices of the executive branch of appointing individuals when a vacancy became available prior to the start of the recess. Accordingly, the Court held that “[i]n light of some linguistic ambiguity, the basic purpose of the Clause, and the historical practice . . . we conclude that the phrase ‘all vacancies’ includes vacancies that come into existence while the Senate is in session.”

Lastly, the Court considered whether the President’s recess appointment power may be exercised when the Senate convenes every three days as part of pro forma sessions, even if the Senate declares that they will not conduct any official business, as they were in January 2012. If these short sessions are treated as the Senate being in “session,” then the period in which President Obama made these appointments was too short to trigger the Recess Appointments Clause pursuant to its analysis regarding Issue 1. On the other hand, if the pro forma sessions were treated as periods of recess, then the 3-day period was part of a much longer recess during which the President had the power to make recess appointments. In this regard, the Court held “that, for purposes of the Recess Appointments Clause, the Senate is in session when it “declares that it is in session and possesses the capacity, under its own rules, to conduct business.” In applying this standard, the Court found that the Senate’s pro forma sessions were “sessions” for purposes of the Recess Appointments Clause because “the Senate said it was in session” and “the Senate’s rules make clear that during its pro forma sessions, despite its resolution that it would conduct no business, the Senate retained the power to conduct business.” Thus, the Court invalidated President Obama’s recess appointments of NLRB Members Griffin, Flynn, and Block.

In a concurring opinion, Justice Scalia (joined by Justices Roberts, Thomas, and Alito) argued that the Court of Appeals decision should be adopted in its entirety. Justice Scalia disagreed that intra-session recess appointments were Constitutional, contending that the majority had “embraced the adverse possession theory of executive power.”

Regardless, the Court’s 9-0 determination that the recess appointments were invalid impacts numerous controversial decisions issued by the NLRB from January 4, 2012 to the point when the Board was properly staffed with its current complement of five members confirmed by the Senate.

Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the Firm.

©2014 Sherman & Howard L.L.C.                                                                           June 27, 2014