U.S. Supreme Court Invalidates President’s NLRB Appointments


The United States Supreme Court yesterday invalidated President Obama’s January 2012 recess appointments to the National Labor Relations Board. In the widely anticipated case of NLRB v. Noel Canning, the Court concluded that the appointments were unconstitutional because the President exceeded his authority under the Recess Appointments Clause of the U.S. Constitution.

Because the appointments were improper (and thus invalid), the NLRB lacked a quorum and could not lawfully act during the time that the recess appointees were on the NLRB. As a result, the cases that the NLRB decided from January until August 2013 are invalid because the board was not properly appointed. This means that dozens of NLRB cases — including important cases concerning social media and the continued expansion of rights under section 7 of the NLRA — must be re-decided by the now-properly constituted and Senate-confirmed NRLB.

Noel Canning : A Case of Constitutional Interpretation

Noel Canning required the Supreme Court to interpret the Recess Appointments Clause, which it had not done in more than 200 years. The Clause allows the President alone to "fill up all Vacancies that may happen during the Recess of the Senate." It therefore creates an exception to the general requirement that the President must obtain "the Advice and Consent of the Senate" before appointing an officer of the United States.

The case arose out of President Obama’s January 4, 2012 recess appointment of 3 members to the NLRB, purportedly under the authority of the Clause. The President contended that the appointments were proper because the Senate was in recess when they were made — Congress had begun a new session on Tuesday, January 3, 2012, with a pro forma session followed by brief recess and then another pro forma session on Thursday, January 6, 2012. But Noel Canning challenged the appointments as unconstitutional, and the case eventually wound up before the U.S. Supreme Court.

In reaching its decision, the Supreme Court looked to the Clause’s text, relevant precedent, and historical practices of the Legislative and Executive branches of the federal government. Based on its analysis, the Court concluded that:

  1. "Recess of the Senate" applies to inter-session and intra-session recesses, meaning that the challenged appointments were not invalid because they occurred during an intra-session recess.
  2. "Vacancies that may happen" applies to vacancies that arise before a recess and those that first occur during a recess. The appointments therefore were not invalid because the vacancies first occurred before the recess.
  3. The Senate’s pro forma sessions cannot be ignored, and thus the Senate was in the midst of a 3-day recess when the challenged appointments were made.

The Court ultimately determined that a recess of more than three days but less than 10 days is presumptively too short to fall within the Clause. The President’s recess appointments therefore were not permitted under the Clause.

What Happens Next?

Because the recess appointments failed to pass constitutional muster, the NLRB did not have the authority to act when it decided hundreds of cases. Although this represents a significant victory, employers should not expect vastly different rulings the second time around. While these cases now must be reexamined by the current Senate-confirmed board, the labor-friendly board likely means that any new decisions simply will result in "more of the same." But the administrative task of simply processing and ruling on these decisions in addition to board’s current docket could temper the board’s continued implementation of its agenda through new rulemaking and decisions.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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