Supreme Court Cans Three Obama Recess Appointments to the National Labor Relations Board

by Cozen O'Connor

The U.S. Supreme Court yesterday released its much-anticipated opinion in National Labor Relations Board v. Noel Canning, holding that President Obama exceeded his authority in appointing Sharon Block, Richard Griffin, and Terrence Flynn to the NLRB during a three-day recess of the Senate. Because the appointments were invalid, only the two previously appointed members of the Board could legitimately conduct Board business, which is insufficient to constitute the necessary quorum. By affirming the decision of the D.C. Court of Appeals, the Supreme Court struck down the Board’s decision in Noel Canning — and implicitly invalidated all other decisions rendered by the Block/Griffin/Flynn/Pearce/Hayes-constituted Board.

The constitutional provision at issue:  The Constitution provides that a president generally must obtain “the advice and consent of the Senate” before appointing an “office[r] of the United States.”  However, the Recess Appointments Clause creates an exception to this rule, granting the president the authority 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 underlying dispute and appellate decision:  In January 2012, membership on the NLRB dropped to two, which resulted in the Board lacking the quorum required for its operation.  On January 4, 2012, President Obama invoked the Recess Appointments Clause of the U.S. Constitution and appointed members Block, Griffin, and Flynn to fill the empty seats on the NLRB.  He made these appointments during a three-day adjournment between pro forma sessions of the Senate.  The seats filled by the recess appointees were refilled in August 2013 by members confirmed by the Senate.

With its three new members in place, the Board decided Noel Canning in favor of the union, determining that the company’s refusal to execute a written agreement, after reaching a verbal understanding with union negotiators, constituted an unfair labor practice. Noel Canning filed a petition for review of the decision, and the union cross-petitioned for enforcement.  The U.S. Court of Appeals for the D.C. Circuit held that the Board’s decision was invalid, because President Obama’s three recess appointments were unconstitutional. 

The Supreme Court’s decision:  The Supreme Court considered three questions: (1) whether the Recess Appointments Clause applies to both intra-session and inter-session recesses; (2) whether the phrase “vacancies that may happen during the recess of the Senate” applies both to vacancies that arise during a recess and to vacancies that arise before a recess which continue to exist during the recess; and (3) how long a recess must be in order for the Recess Appointments Clause to apply. The Court answered the first two questions in the affirmative. 

Thus, the validity of Obama’s recess appointments of members Block, Griffin, and Flynn hinged upon the answer to question number three, and the Court decided that a three-day recess is too short to trigger the Recess Appointments Clause. On December 17, 2013, the Senate passed a resolution providing for a series of brief recesses — during which no Senate business was conducted between Tuesday and Friday through January 20, 2014 — interrupted by pro forma sessions.  The Court first determined that it could not ignore the intervening pro forma sessions and interpret the resolution as creating a single recess spanning December 17 through January 20.  Thus, the recess during which President Obama made the controversial NLRB appointments was only three days long. 

The Court concluded that this was not long enough to trigger the Recess Appointments Clause, reasoning that “a three-day break is not a significant interruption of legislative business” and that “[a] Senate recess that is so short that it does not require the consent of the House [under the Constitution’s Adjournments Clause] is not long enough to trigger the president’s recess appointment power.”  Therefore, the Court held that “a recess of more than three days but less than 10 days is presumptively too short to fall within the [recess appointments] clause.”  The Court made clear that its use of the term “presumptively” is significant, noting that its holding “leav[es] open the possibility some very unusual circumstance — a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response — could demand the exercise of the recess-appointment power during a shorter break.”

The implications:  This decision has obvious implications in terms of the limits it places on a president’s power under the Recess Appointments Clause.  However, it also has significant implications for the host of decisions the Board rendered while members Griffin, Block, and Flynn were sitting.  In a 1946 decision, NLRB v. Cheney California Lumber Co., the Supreme Court held that “if the Board has patently traveled outside the orbit of its authority so that there is, legally speaking, no order to enforce,” a reviewing court is without jurisdiction to enter an order of enforcement.

Given the Supreme Court’s determination that three of the five members of the Board sitting when Noel Canning was decided were not properly appointed, the Board lacked the quorum necessary for it to conduct business, and — as the D.C. Circuit noted — there is effectively “‘no order to enforce’ because there was no lawfully constituted Board.”  In the wake of this decision, we can expect a proliferation of challenges to orders issued by the Board while Block, Griffin, and Flynn were members.

Finally, the Noel Canning decision will provide useful guidance in connection with pending petitions for review of decisions that involve challenges to the recess appointment of Board member Craig Becker. Member Becker was presidentially appointed during a two-week, intra-session recess that was not interrupted by a pro forma session, and the vacancy he filled had arisen before the recess in question.

Justice Breyer delivered the opinion, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan; Justice Scalia filed a concurrence, joined by Justices Roberts, Thomas, and Alito. It is available 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.

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