D.C. Circuit Rules NLRB Recess Appointments Unconstitutional

by Morgan Lewis

The ruling places in substantial doubt the validity of any NLRB decision or action since January 4, 2012, and calls into question the scope of the president's recess appointment power more generally.

On January 25, in Noel Canning v. National Labor Relations Board, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously ruled that President Barack Obama's three recess appointments to the National Labor Relations Board (NLRB or Board) in January 2012 were unconstitutional.[1] This decision has potentially far-reaching effects as it calls into question the validity of NLRB decisions since the appointments, as well as the president's recess appointment power generally.


On January 4, 2012, President Obama made three controversial recess appointments to the NLRB. Those appointments were made one day after the expiration of Member Craig Becker's term, which left the five-seat Board with only two confirmed members—Mark Pearce and Brian Hayes—and a lack of quorum to issue decisions. In an effort to avoid effectively shuttering the agency during what likely would have been an extended Senate confirmation process for new appointees, President Obama appointed Sharon Block, Richard Griffin, and Terence Flynn to the Board. President Obama did so under the auspices of his recess appointment power contained in Article II, Section 2 of the U.S. Constitution, referred to as the Recess Appointments Clause.

The D.C. Circuit's decision in Noel Canning involved review of a Board decision against employer Noel Canning in a relatively routine unfair labor practice case. A three-member panel consisting of Members Hayes, Flynn, and Block issued the decision on February 8, 2012. In its petition for review of the Board's decision, Noel Canning argued to the D.C. Circuit that the Board at the time only had two validly appointed members. In effect, Noel Canning argued that the Board lacked a quorum to issue decisions and that the adverse decision against it was invalid. The D.C. Circuit agreed.

D.C. Circuit Opinion

In a lengthy opinion, the D.C. Circuit flatly rejected the Board's and the Obama administration's claims that the Senate was in recess on January 4, 2012, for purposes of the Recess Appointments Clause. The clause provides as follows:

The President shall have 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.

The court first held that the term "the Recess" refers only to intersession breaks between formal sessions of Congress and that it does not refer to mere intrasession breaks or adjournments. The court explained that "[a]s a matter of cold, unadorned logic, it makes no sense to adopt the Board's proposition that when the Framers said 'the Recess,' what they really meant was 'a recess.'"[2] This ruling effectively limits the president's recess appointment power to just two breaks—and, in some cases, one or no break at all—during each two-year period that a Congress holds power. As such, President Obama's appointments of Members Block, Griffin, and Flynn at a time other than an intersession break alone rendered the appointments invalid.

The court was not persuaded by the argument that President Obama's "recess" appointments were consistent with those of many presidents in recent history. The court chose instead to rely on interpretation and practice dating back to the Framers, noting that no president attempted to make an intrasession recess appointment in the first 80 years after the Constitution was ratified. The court also was not persuaded by the suggestion that the president might have the ability to decide if and when the Senate is "in recess." According to the court, this "would eviscerate the Constitution's separation of powers . . . [and it] would demolish the checks and balances inherent in the advice-and-consent requirement[.]"[3] These three recess appointments to the NLRB were particularly controversial because, unlike recess appointments of other presidents, these were made at a time when the Senate itself was holding pro forma sessions every three days. Although this fact was not central to the court's decision, it provides important context to the separation of powers argument.

The court then went on to consider when a vacancy must "happen" for purposes of the Recess Appointments Clause. The court concluded that the clause only covers vacancies that actually arise during the recess, not to vacancies that "happen to exist" when the recess begins. This interpretation further restrains the president's recess appointment powers, as recess appointments only can be made during a period that may be rather short or nonexistent during some two-year congressional sessions. The court again explained that an alternative interpretation would allow the president to hold his nominations until a recess and then circumvent the formal confirmation process. The court held that President Obama's January 2012 Board appointments were invalid on this basis as well, given that none of the vacancies in question arose during an intersession recess.


In a statement issued shortly after the D.C. Circuit's ruling, NLRB Chairman Pearce indicated that the Board would continue to function and issue decisions. Chairman Pearce also expressed the current Board's disagreement with the decision and pointed out that the decision only applies to one specific case.[4] The D.C. Circuit's decision nonetheless is far reaching and critically important. This is particularly true for those employers recently or currently involved in Board proceedings.

The Noel Canning decision provides a roadmap for challenging the validity of recent Board decisions in the D.C. Circuit. Unless the substantive law of the case is more favorable elsewhere, the D.C. Circuit will become the presumptive forum of choice for challenging Board decisions. This could include Board decisions during the recent term of Member Becker, who also was a recess appointee. In addition, the Noel Canning decision may provide another basis for challenging the NLRB election rules that were issued while Member Becker was on the Board. Those rules currently are being challenged on separate quorum-related grounds.

We expect the issue of the president's recess appointment power to make its way to the U.S. Supreme Court, either in the Noel Canning case or related litigation. This is particularly true given that the D.C. Circuit's decision has implications beyond the NLRB. President Obama also invoked his recess appointment power to appoint Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) on January 4, 2012. As the CFPB's first director, Cordray was empowered by the Dodd-Frank Wall Street Reform and Consumer Protection Act to prescribe rules and issue orders and guidance necessary to carry out the purposes of the federal consumer financial laws. The agency has issued approximately 28 regulations since his appointment. Two of the regulations, both with January 2014 effective dates, are expected to dramatically affect the mortgage lending and mortgage servicing businesses. With the scope of the president's appointment power now unclear, however, CFPB regulations issued under Director Cordray almost certainly will be called into question.

[1]. Noel Canning v. Nat'l Labor Relations Bd., No. 12-1115 (D.C. Cir. Jan. 25, 2012), available here.

[2]. Id. at 17.

[3]. Id. at 25-26.

[4]. View Chairman Pearce's statement here.


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.

© Morgan Lewis | Attorney Advertising

Written by:

Morgan Lewis

Morgan Lewis on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.