CALL 503.248.1134

200 SW Market Street, Suite 1900
Portland, Oregon 97201

US Supreme Court's Noel Canning Decision Strikes President’s NLRB Recess Appointments

June 26, 2014

By Michael G. McClory

This morning the United States Supreme Court issued its much anticipated decision in National Labor Relations Board v. Noel Canning.  The case involved a dispute regarding the validity of three “recess” appointments to the Board: specifically, whether the Senate was in recess when President Obama when he made three Board Member appointments.

Bullard Alert readers will recall that on January 25, 2013 a three-member panel of the United States Court of Appeals for the District of Columbia rejected a decision of the recess-appointee heavy Board. In rejecting the decision, the DC Circuit found, among other things, that the recess appointments were unconstitutional, that the Board had only two validly appointed Members, and that consequently the Board lacked the quorum necessary for Board action.  Due to a conflict in the circuits, the US Supreme Court granted review.

Justice Breyer delivered today’s virtually unanimous opinion, which was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan.  The other four Justices concurred in the judgment, but filed a separate opinion (Justice Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito).

An excerpt from the beginning of the Court’s opinion is set forth below.  A Bullard Alert analyzing the opinion will follow.

JUSTICE BREYER delivered the opinion of the Court.

Ordinarily the President must obtain “the Advice and Consent of the Senate” before appointing an “Office[r] of the United States.” U. S. Const., Art. II, §2, cl. 2. But the Recess Appointments Clause creates an exception. It gives the President alone 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.” Art. II, §2, cl. 3. We here consider three questions about the application of this Clause.

The first concerns the scope of the words “recess of the Senate.” Does that phrase refer only to an inter-session recess (i.e., a break between formal sessions of Congress), or does it also include an intra-session recess, such as a summer recess in the midst of a session? We conclude that the Clause applies to both kinds of recess.

The second question concerns the scope of the words “vacancies that may happen.” Does that phrase refer only to vacancies that first come into existence during a recess, or does it also include vacancies that arise prior to a recess but continue to exist during the recess? We conclude that the Clause applies to both kinds of vacancy.

The third question concerns calculation of the length of a “recess.” The President made the appointments here at issue on January 4, 2012. At that time the Senate was in recess pursuant to a December 17, 2011, resolution providing for a series of brief recesses punctuated by “pro forma session[s],” with “no business . . . transacted,” every Tuesday and Friday through January 20, 2012. S. J., 112th Cong., 1st Sess., 923 (2011) (hereinafter 2011 S. J.). In calculating the length of a recess are we to ignore the pro forma sessions, thereby treating the series of brief recesses as a single, month-long recess? We conclude that we cannot ignore these pro forma sessions.

Our answer to the third question means that, when the appointments before us took place, the Senate was in the midst of a 3-day recess. Three days is too short a time to bring a recess within the scope of the Clause. Thus we conclude that the President lacked the power to make the recess appointments here at issue.