In a unanimous decision issued June 26, 2014, the Supreme Court ruled that President Obama’s three so-called recess appointments to the National Labor Relations Board in January 2012 were unconstitutional and invalidated the order entered by the improperly appointed Board panel. National Labor Relations Board v. Noel Canning. When the appointments were made, the Senate was in pro forma sessions, meeting every three days and transacting some Senate business. The Senate met on January 3 and January 6, 2012. The President made the NLRB appointments on January 4. The Court’s 5-Justice majority agreed that any recess shorter than 10 days “is presumptively too short” for the President to exercise his appointment power.
The Court affirmed the 2013 D.C. Circuit Court of Appeals’ decision invalidating the Board’s 2012 decision but used distinctly different constitutional rationale to arrive at the same conclusion. While the Court of Appeals’ decision set aside the President’s appointments on the basis that a valid recess appointment must be an intersession appointment, the Supreme Court held that the Constitution’s Recess Appointments Clause permits both intersession and intra-session appointments. At issue for the Supreme Court was the length of the Senate’s intra-session recess in January 2012. The Court held that “three days is too short a time to bring a recess within the scope of the Clause,” so the President lacked authority to make these appointments under the Recess Appointment Clause. The Court declined to offer any bright-line test to determine when the Senate is actually in session versus recess and refused to second-guess the Senate’s motives for avoiding a lengthy recess, in the interests of avoiding “judicial interference with the Legislative Branch.” The Court commented simply, “The Senate is in session when it says it is provided that, under its own rules it retains the capacity to transact Senate business.”
The possible implications of the Court’s decision are far reaching. Numerous pending court challenges to other decisions by the same Board panelists will likely be disposed of unfavorably to the NLRB. Some estimates of Board precedents that may ultimately be affected by the decision reach 100 cases. In addition, this decision rekindles the debate as to what other Board actions must be revisited, such as personnel appointments and decisions made by regional directors who were not appointed by a properly constituted NLRB.