Supreme Court Holds NLRB Member Recess Appointments Unconstitutional

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

This morning, in National Labor Relations Board v. Noel Canning, the Supreme Court of the United States concluded that the recess appointments of former National Labor Relations Board (NLRB) members Sharon Block, Terence F. Flynn, and Richard F. Griffin, Jr. made on January 4, 2012, were unconstitutional. As a result, every decision issued by the Board between January 4, 2012, and July 30, 2013, is void. National Labor Relations Board v. Noel Canning, No. 12–1281, Supreme Court of the United States (June 26, 2014).

In an opinion by Justice Breyer (9-to-0 on the judgment, 5-to-4 on the reasoning), the Court affirmed the decision of the D.C. Circuit Court of Appeals invalidating the recess appointments in question based upon a different legal theory. The Supreme Court held that the U.S. Constitution’s Recess Appointments Clause empowers the president to fill any existing vacancy during any recess (intra-session or inter-session) of sufficient length. Yet, the Court held that the appointments being challenged were invalid because they occurred during only a three-day recess, which is insufficient time to trigger the Recess Appointments Clause, while the Senate was in “pro forma” sessions. Thus, the Court affirmed the D.C. Circuit’s holding that the recess appointments were unconstitutional and, since the Board lacked a quorum of members to act, the decisions issued during that period of invalidity are void. This is the first time the Supreme Court has ever addressed the meaning of the Recess Appointments Clause, justifying the 108 pages the Court devoted to exhaustively analyzing the text, structure, and history of the clause.    

The D.C. Circuit’s Decision

The issues addressed by the Supreme Court were raised and decided by the D.C. Circuit Court of Appeals in Noel Canning v. NLRB. The D.C. Circuit concluded as follows. 

Recess appointments of certain government officials requiring the advice and consent of the U.S. Senate, including members of the NLRB, are permissible under the U.S. Constitution only if they are made inter-session. This means that the Senate cannot be in session when the recess appointments are made. Moreover, recess appointments are constitutional only if they are made while the Senate is not in session and are made to fill a vacancy that occurred during the inter-session recess.

The Senate was not in an inter-session recess when the vacancies occurred, and the Senate was not in an inter-session recess when the appointments were made. Therefore, the attempt to appoint three members of the Board without the advice and consent was unconstitutional. 

The Supreme Court held in New Process Steel, L.P. v. National Labor Relations Board (2010), that the Board must have a quorum of three members to take lawful action. Because in Noel Canning the D. C. Circuit held that the appointments of three of the five Board members were unconstitutional, the Board lacked a quorum, and the order under review was void ab initio (from the beginning).

The Supreme Court’s Decision

In a unanimous decision, the Supreme Court agreed with the D.C. Circuit’s conclusions, but for different reasons. Succinctly stated, the Court’s majority disagreed with the D.C. Circuit's logic and concluded that the U.S. Constitution’s Recess Appointments Clause applies to both intra-session and inter-session recesses. The majority added that intra-session recesses of between 3 and 10 days are presumptively too short to permit use of the Recess Appointments Clause. The Court’s majority also disagreed with the D.C. Circuit and held that vacancies need not occur during an inter-session recess to be filled by recess appointment. (A concurring opinion authored by Justice Scalia, in which Chief Justice Roberts and Justices Thomas and Alito joined, set forth reasoning that was much closer to that of the D.C. Circuit.)

Applying this view of the law to the facts before it, the Court observed that the appointments in question had been made on January 4, 2012, during a brief three-day recess. The Court concluded, “Three days is too short a time to bring a recess within the scope of the Clause. Thus we conclude that the President lacked the power to make the recess appointments here at issue.”

The practical result is that the appointments of Members Flynn, Block, and Griffin are invalid. In their absence, the Board lacked a quorum to act from January 4, 2012, until July 30, 2013. Thus, every decision rendered by the Board between these dates is also invalid. Moreover, certain administrative decisions requiring Board approval, such as the appointment of Regional Directors, are also called into question as a result of today’s decision.

The Court referenced the recess appointment of former Board Member Craig Becker, and noted that there are cases challenging that appointment pending in several circuit courts of appeals, but made no ruling as to the validity of the appointment.

The Supreme Court’s decision in Noel Canning does not have a direct impact on the NLRB’s pending ambush election regulations. It may, however, have an effect on whether and how future Board members will be appointed. We will keep you apprised of further developments as they occur. 

Practical Impact

According to Harold P. Coxson, a principal with Ogletree Governmental Affairs, Inc., a member of Ogletree Deakins’ Traditional Labor Relations Practice Group, and a shareholder in the Washington, D.C. office of Ogletree Deakins, “Following the Supreme Court’s June 2010 decision in New Process Steel, which held that the Board needs a three-member quorum to act, the Board was forced to reconsider more than 600 decisions issued during the period in which the Board lacked a quorum. Unlike the cases implicated as a result of the Court’s Noel Canning holding, the decisions invalidated by New Process Steel were relatively simple, non-controversial cases where the two voting members—pro-employer Republican Peter C. Schaumber and pro-union Democrat Wilma B. Liebman—could agree. The issues in the current crop of Noel Canning-invalidated decisions, many of which have been held in abeyance by the D.C. Circuit pending the Supreme Court’s decision, are far more controversial and significant.”

Additional Information

To learn more about Noel Canning’s effect on employers, join our speakers, C. Thomas Davis (Shareholder, Nashville) and Brian E. Hayes (Shareholder, Washington, D.C.), who co-chair the firm’s Traditional Labor Relations Practice Group, for a complimentary webinar on July 1, 2014. Register for “Noel Canning: What the U.S. Supreme Court’s Ruling Means for Employers,” here. Should you have any questions about the Court’s decision, please contact the Ogletree Deakins attorney with whom you normally work, or the Client Services Department at

Note: This article was published in the June 26, 2014 issue of the National eAuthority.


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.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

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