Supreme Court Invalidates NLRB Recess Appointments

by Ballard Spahr LLP

The U.S. Supreme Court ruled yesterday that President Obama’s 2012 recess appointments to the National Labor Relations Board (NLRB) were invalid. Justice Stephen Breyer delivered the opinion of the Court in N.L.R.B. v. Noel Canning, et al. and was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Justice Antonin Scalia, joined by Chief Justice John Roberts, Jr., and Justices Clarence Thomas and Samuel Alito, filed a concurring opinion agreeing with the result, but disputing the rationale. The Court’s decision has a significant impact on all cases decided by the NLRB between January 2012 and July 30, 2013.

In 2011, President Obama announced plans to make three nominations—Richard Griffin, Sharon Block, and Terrence Flynn—to the NLRB. With the nominees still awaiting Senate confirmation on January 4, 2012, however, President Obama placed them on the Board by way of recess appointment. Although the President ordinarily must obtain the Senate’s consent before appointment of Board members, the Recess Appointments Clause of the U.S. Constitution creates a limited exception by giving the President the sole power to fill vacancies during a “Recess of the Senate.”

These nominations were called into question because on December 17, 2011, the Senate passed a resolution providing for regular pro forma sessions until returning to ordinary business on January 23, 2012. President Obama made the appointments between the January 3 and January 6 pro forma sessions. The White House took the position that the appointments were valid because Congress was “in recess” until January 23. Republicans countered that the House had not allowed the Senate to adjourn, and the Senate did not enter a formal recess by holding pro forma sessions to keep the legislative session active.

In 2013, the U.S. Court of Appeals for the District of Columbia Circuit nullified the recess appointments of Members Block, Griffin, and Flynn, finding that the President had exceeded his constitutional authority. The court held that the appointments were invalid because “the Recess” in the clause refers only to an inter-session recess of Congress and does not include intra-session recesses. In addition, the D.C. Circuit found that the clause only applies to vacancies that "happen" to arise during a recess, so that vacancies that predate a recess cannot be filled by a recess appointment.

The Supreme Court’s decision affirmed the judgment of the D.C. Circuit that the three recess appointments at issue were invalid, but on different grounds. The Court put “significant weight” on the historical practice of recess appointments, noting that presidents have made recess appointments since the beginning of the Republic and the Senate has not countered that method. Thus, the Supreme Court rejected the D.C. Circuit’s conclusion that a “recess” includes only inter-session recesses.

Instead, the Court determined that a “recess” under the Recess Appointments Clause includes both intra-session and inter-session recesses. However, the Court concluded that a recess that is so short that it does not require the consent of the House is too short to trigger the clause, holding that a recess of less than 10 days is presumptively too short.

Again relying on historical practice, the Court also concluded that the President has the constitutional authority to make appointments to positions that are vacant during a recess, regardless of when they arose.

Finally, the Court ruled the length of a recess is to be determined by the Senate, provided that under its own rules, it retains the power to transact business.

Although the Court upheld the President’s power to make recess appointments, applying these principles to the facts of the case, the Court held that the appointments at issue were invalid. The Court found that President Obama lacked the authority to appoint the Board Members at issue, because the Senate was not in recess and a three-day recess was too short anyway under the Recess Appointments Clause.

The Supreme Court’s decision will require the Board to revisit more than 200 decisions rendered while the Board was improperly constituted. However, the NLRB now consists of five members who all received Senate confirmation after nominations by the President, and the new Board has shown little philosophical disagreement with its predecessor. As such, most of the invalidated opinions are likely to be reaffirmed.


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Ballard Spahr LLP

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