The U.S. Supreme Court yesterday issued a decision in NLRB v. Noel Canning in which it held that President Obama’s January 2012 recess appointments to the National Labor Relations Board were invalid.
The NLRB recess appointments were made on January 4, the day after a new session of Congress had begun with a pro forma January 3 session and two days before another pro forma session was held on January 6. The Senate thereafter continued to hold additional pro forma sessions until reconvening on January 23. The D.C. Circuit, in the decision reviewed by the Supreme Court, concluded that the NLRB appointments violated the U.S. Constitution’s Recess Appointments Clause (RAC) because the RAC only allows a president to make such appointments during an intersession recess of the Senate, and they can only be used to fill vacancies that first arose during the recess in which the appointments were made.
Although Richard Cordray’s recess appointment as CFPB Director was not at issue in Canning, we followed the case very closely because his appointment was made on the same day and through the same assertion of recess appointment authority as the NLRB appointments. The Supreme Court’s rationale discussed below for invalidating the NLRB appointments means that Director Cordray’s recess appointment was indeed invalid. However, Director Cordray’s confirmation by the Senate as CFPB Director in July 2013 and his subsequent ratification of the actions he took prior to his confirmation means that the Canning decision has no impact on Mr. Cordray’s legal status as CFPB Director or the validity of any CFPB actions taken prior to his confirmation. (While someone could theoretically challenge the validity and effect of Director Cordray’s ratification, we highly doubt that such a challenge would succeed.)
Ironically, while the Supreme Court adopted a broader reading of the president’s RAC authority than the D.C. Circuit, President Obama and his successors may have less need to avail themselves of that authority as a result of Senate Democrats having “gone nuclear” last fall. In November 2013, Senate Democrats voted to change Senate filibuster rules to only require 51 (a simple majority) rather than 60 votes for most Presidential nominees to proceed to a full Senate vote.
In its Canning decision, the Supreme Court held the following:
the President’s recess-appointment power can be exercised during either a recess that occurs between Senate sessions or that occurs within a session of the Senate and is of “substantial length”
the President’s recess-appointment power can be exercised to fill a vacancy either that initially occurs during a recess or that initially occurs before a recess and continues to exist during the recess
the Senate was not in recess when it was conducting pro forma sessions in January 2012 (On this point, the court held that for purposes of the RAC, “the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.” It found that the January 2012 pro forma sessions met that standard. According to the court, the 3-day recess between the January 3 and January 6 pro forma sessions was too short to trigger the president’s RAC authority.)