In a unanimous panel decision issued this morning in Noel Canning v. NLRB, the United States Court of Appeals for the District of Columbia held that President Obama's January 2012 recess appointments to the National Labor Relations Board were unconstitutional because the Senate was not in recess at the time the appointments were made.
Examining the text, structure and history of the Constitution, Chief Judge David Sentelle held that the Senate is not "in recess" unless it is not "in session." Thus, only the period between one Congressional session and the next is a "recess" during which the President may make appointments under the authority of the Recess Appointments Clause. Further, there can be no constitutionally valid recess appointments where the Senate is in session, but on a short break or holding so-called "pro forma" sessions, as it was in January 2012.
The implications of today's decision are significant and potentially far-reaching. Under the Supreme Court's decision in New Process Steel, 130 S.Ct. 2635 (2010) -- which held that NLRB decisions issued in the absence of a three-member quorum are constitutionally invalid -- all NLRB decisions from January 2012 forward will likely be invalidated because the Board was operating without the necessary quorum during that period. Additionally, today's ruling may invalidate all of the President's "recess appointments" to posts in other federal agencies made while the Senate was still in session in early 2012.
Despite today's decision, this story is not likely over as the NLRB will almost certainly seek en banc review by the Circuit Court and/or review of the decision in the United States Supreme Court.
This alert will be followed with an in-depth analysis of the Court of Appeals' decision and its immediate and potential far-reaching impacts. In the meantime, if you have questions regarding how this decision may impact your business, please contact any member of BakerHostetler's Labor Relations Team.