On June 26, 2014, the U.S. Supreme Court decided National Labor Relations Board v. Noel Canning, No. 12-1281, holding that the President of the United States lacked authority to appoint three members of the National Labor Relations Board (NLRB) during a three-day recess between pro forma sessions of the Senate because such a recess was too short a time to constitute a "recess" under the Recess Appointments Clause in Article II of the Constitution.
Over the course of 2011, President Obama nominated three people to serve as members of the NLRB. Their nominations required Senate confirmation, and remained pending for some time.
On December 17, 2011, the Senate adopted a resolution providing that it would take a series of brief recesses beginning the following day. Under that resolution, the Senate held pro forma sessions every Tuesday and Friday until it returned for ordinary business on January 23, 2012. During each pro forma session, the Senate would be gaveled to order and then immediately adjourned without any actual business being conducted.
The Senate held one such pro forma session on January 3, 2012. The next day, President Obama appointed the three members to the NLRB, citing his authority under the Recess Appointments Clause in Article II, section 2 of the Constitution, which provides that the President has the 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 President took the position that the Senate was in "Recess" on January 4 within the meaning of the Recess Appointments Clause, and that he consequently had the authority to fill the three vacancies that existed.
Later in 2012, the NLRB (which now included the three new members that the President had appointed on January 4) found that Noel Canning, a Pepsi-Cola distributor, had unlawfully refused to reduce to writing and execute a collective-bargaining agreement with a labor union. The board ordered Noel Canning to execute the agreement and make employees whole for any loss.
Noel Canning asked the U.S. Court of Appeals for the District of Columbia Circuit to set the Board's order aside, arguing that the appointments of the three new Board members on January 4 were not valid under the Recess Appointments Clause, leaving the NLRB with only two validly appointed members, and thus without a quorum that enabled it to exercise its powers. The D.C. Circuit agreed that the appointments fell outside the scope of the Recess Appointments Clause, mainly on the ground that the phrase "recess of the Senate" in the Recess Appointments Clause does not include recesses that occur within a formal session of Congress (an "intra-session" recess), and applies only to recesses between formal sessions of Congress ("inter-session" recesses). The appeals court concluded that the NLRB lacked a quorum of validly appointed members when it issued its order against Noel Canning, so its order was invalid.
The Supreme Court affirmed the D.C. Circuit's judgment, but on a different rationale. The Court first held that the Recess Appointments Clause allows the President to fill existing vacancies during any Senate recess, regardless whether it is intra-session or inter-session. The Court based this conclusion in part on the purpose of the Recess Appointments Clause, which is to allow the President to make appointments to ensure the continued functioning of the government while the Senate is away. The Senate is equally away during both inter-session and intra-session recesses. And Presidents have historically made intra-session recess appointments without the Senate taking formal action to oppose them. That long-standing practice is entitled to great weight in interpreting the constitutional provision at issue.
The Court then held that the phrase "vacancies that may happen during the recess of the Senate"
applies both to vacancies that first come about during a recess and to vacancies that initially occur before a recess but continue to exist during the recess. Again, the Court cited historical practice to support its conclusion: there is a long tradition of Presidents using the clause to fill vacancies that first occurred pre-recess, but continued into a Senate recess.
So how long was the "recess" at issue in this case? The government argued that the Senate was in "recess" for a little more than one month, starting on December 18, 2011 (the last day it conducted ordinary business) until January 23, 2012 (the day that it resumed its ordinary business). The government argued that because no actual business was conducted during the pro forma sessions, the Senate was really in recess on the days it conducted such sessions. Noel Canning argued that even though the sessions were pro forma, they counted as being "in session" because the Senate treated them that way, so that the Senate was in recess only three days—i.e., between the adjournment of the January 3 pro forma session and the start of the January 6 pro forma session. The Court agreed with Noel Canning, and held that for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that it retains the capacity under its own rules to transact Senate business during those times. The Court observed that the Constitution broadly delegates authority to the Senate to determine how and when to conduct its business. But that authority is not absolute, and when, under its own rules, the Senate lacks the capacity to act, it is not in session even if it says that it is. The Court concluded that the Senate was "in session" during the pro forma sessions at issue because even though it did not conduct any business, it retained the power to do so. Thus, the Senate stood in "recess" for purposes of the Recess Appointments Clause only from January 3 to January 6, 2012.
Finally, the Court concluded that a three-day recess was not long enough to constitute a "recess" for purposes of the Recess Appointments Clause. While the Clause does not say how long a break is required to constitute a "recess," the government agreed that a three-day break in Senate business was not a significant interruption in legislative business that would support giving the President the power to act unilaterally to ensure the continued smooth operation of the government. The Court held that a recess of less than 10 days is "presumptively too short to fall within the Clause," but noted the possibility that "some very unusual circumstance—a national catastrophe, for instance" could support the exercise of the recess-appointment power during a shorter break.
Justice Breyer delivered the unanimous opinion of the Court. Justice Scalia concurred in the judgment, joined by Chief Justice Roberts and Justices Thomas and Alito.
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