Unanimous Supreme Court Rebukes President Obama for Unconstitutional NLRB Recess Appointments

by Faegre Baker Daniels

On June 26, 2014, the United States Supreme Court handed down its Noel Canning decision, unanimously finding that President Obama's January 4, 2012, appointments of Sharon Block, Richard Griffin and Terence Flynn to the National Labor Relations Board (NLRB) failed to comply with the Recess Appointments Clause of the United States Constitution. This means that the 700 decisions the NLRB made from January 4, 2012, until August 5, 2013, when the NLRB again had lawfully appointed members, are all invalid.

How This Case Came to The Supreme Court

Noel Canning is a Yakima, Washington, Pepsi-Cola distributor that the NLRB found had unlawfully refused to reduce to writing and execute a collective bargaining agreement with a union. The NLRB ordered Noel Canning to execute the collective bargaining agreement and make the employees whole for any losses caused by its failure to execute the agreement. Noel Canning appealed to the District of Columbia Circuit Court of Appeals, asserting that President Obama's three NLRB recess appointments were invalid and, since the NLRB must have a quorum of three validly appointed members to act, its adverse decision against the company should be invalidated. 

The Court of Appeals agreed with Noel Canning on the ground that these appointments unlawfully occurred during a recess that took place during Congress' formal session, rather than between such sessions; in other words, during an intra-session recess rather than an inter-session recess. The formal session had commenced on January 3, 2012 — the day before the President's appointments and, thus, during a Senate session. The Court of Appeals further asserted that the appointments were invalid because the appointments were made to fill vacancies that had first arisen during the prior legislative session and not during the congressional recess. 

The Solicitor General petitioned for certiorari to the Supreme Court, asking the Court to overturn the District of Columbia Circuit. The Court granted that petition, with the additional request by the Court to address whether the President could make lawful appointments when the Senate is convening pro forma sessions, in which it convenes every three days without the intent to conduct any business.

The Majority's Decision

Under the second clause of Article II Section 2 of the United States Constitution, the President ordinarily must obtain "the Advice and Consent of the Senate" before appointing someone to an Office of the United States. The following clause, known as the Recess Appointments Clause, however, creates an exception, allowing the President alone "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 is not to routinely rely upon the Recess Appointments Clause to make appointments; to the contrary, the norm is that the President makes a nomination, which the Senate confirms. The issue decided in this case was when a President could properly invoke the Recess Appointments Clause instead of being required to submit a nominee to the Senate confirmation process. To do this, the Court considered the text of the Recess Appointments Clause, particularly the words "happen" and "recess," along with the history of Presidents making recess appointments.

The first issue the majority opinion addressed was whether the Senate is in "recess" only during the inter-session breaks it takes between annual congressional sessions or is it also in recess when it takes intra-session breaks. The Court determined that "recess" includes intra-session recesses "of substantial length." The Court found that the Founders used the word "recess" to refer to both intra- and inter-session breaks, noting that the Senate is "equally away during both an inter-session and intra-session recess, and its capacity to participate in the appointments process has nothing to do with the words it uses to signal its departure." It further explained that over the years, Congress has taken shorter inter-session breaks and longer and more frequent intra-session breaks, so as time progressed, Presidents similarly made more intra-session appointments. Further, the Court determined that restricting the Recess Appointments Clause to inter-session recesses would frustrate its purpose, making the President's appointment power dependent upon the formalities of Senate procedure. Looking at the historical use of recess appointments, the Court determined that the Framers intended the Clause to apply to new circumstances that are consistent with the Clause's text and original purpose. The majority further commented that, while this interpretation might permit appointees to hold office for longer periods, the Senate confirmation process is lengthy. Thus, this interpretation allows the President the assistance of these recess appointments while simultaneously working with the Senate to obtain confirmation of a regular appointee. 

The Court then dealt with the issue of how long the recess must be to invoke the Recess Appointments Clause, as the Recess Appointments Clause itself is silent on this issue. The Court determined that the three-day recess at issue in this case was too short, as it is not a significant enough interruption of the Senate's business. Relying on the historical use of recess appointments, the Court stated that there were few examples of recess appointments made during recesses shorter than 10 days. Thus, the Court concluded that a recess of more than three but less than 10 days is "presumptively too short to fall within the Clause," leaving open the possibility that a "very unusual circumstance — a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response" — could warrant invocation of the Clause during a shorter break.

The Court next addressed whether the phrase "vacancies that may happen during the recess of the Senate" means that the vacancy must initially arise during the recess or whether it could initially arise prior to the recess but continue during the recess. The Court concluded that the term "happen" is ambiguous in this context and a broad interpretation of this term supports allowing a President the assistance of subordinate officers when the Senate is in recess. Therefore, this approach furthers a goal of the constitution to keep offices filled. Recognizing that a President could invoke the Recess Appointments Clause to circumvent the Senate confirmation process altogether, the Court stated that recess appointments may be less desirable because of their limited terms and, without Senate approval, officers appointed in this manner may have more difficulty accomplishing the objectives of their position. The Court further noted that the Senate could frustrate the President's ability to invoke the Recess Appointments Clause by refusing to take recesses, but it has had such a capacity throughout history and Senate confirmation remains the norm. In addition, the Court noted that every President since James Buchanan has used the Recess Appointments Clause to fill vacancies that initially had occurred before the recess. 

The final issue before the Court was how to calculate the length of the Senate's "recess." During the Senate's pro forma sessions at issue, the Senate was convening every Tuesday and Friday without any intent to transact business on those days. At the end of each session, it adjourned until the next pro forma session. President Obama made the recess appointments at issue on January 4, 2012, which was between the January 3 and January 6 pro forma sessions. The Court determined that these sessions were, in fact, sessions, and not recess periods, noting that, "for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business." The Court noted that the Constitution gives the Senate extensive control over its schedule, with limited exceptions, and the Court historically has taken the Senate's own report of its actions at face value. The Court clarified that it did not give absolute deference to the Senate's determination of when it is in session and, if the Senate lacked the capacity to act under its rules, the Court would not consider it to be session even if it said it was. Based on this reasoning, the Court was in session during the relevant pro forma sessions at issue in this case because it said it was in session and had the capacity to conduct business.

What This Decision Means to Employers

This decision invalidates all of the 700+ decisions the NLRB rendered between January 4, 2012, and August 2, 2013. Employers should review those cases that the NLRB decided during this period to determine if there are any adverse rulings that are affected by this ruling. In addition, during the period the NLRB was improperly constituted, it made certain Regional Director appointments, arguably rendering those appointments similarly invalid. Therefore, employers could challenge all decisions those Regional Directors have made, even those that were issued after August 2, 2013, as those Regional Directors continue to lack authority to render such decisions. Employers must make a strategic decision on how best to proceed with respect to these decisions. We recommend employers seek qualified labor counsel to assist in determining the best course to pursue.

This case may also affect the continuing vitality of the NLRB's controversial decision in D.R. Horton, Inc., which held that class action waivers in arbitration agreements violate employees' Section 7 rights, although the fate of that decision is less certain. The uncertainty lies in whether the NLRB's January 3, 2012, decision remains valid, even though one of the three panel members, Member Becker, was appointed under the Recess Appointments Clause during a 17-day intra-session recess during March and April 2010. Member Becker's appointment was ruled invalid in NLRB v. New Vista Nursing & Rehab, 719 F.3d 203, 221 (3d Cir. 2013), in which the Third Circuit concluded "the Recess of the Senate" only applied to inter-session recesses. The Noel Canning decision rejected such reasoning, concluding "the Recess of the Senate" applies to both inter-session and intra-session recesses. The majority opinion, and Justice Scalia's concurrence, however, leave open the issue of whether an appointment occurring during an intra-session recess lasting longer than 10 days, like Member Becker's, remains valid. Justice Scalia highlighted the majority's silence on the issue and questioned the idea of whether the President has an "utterly free hand" during recesses lasting longer than 10 days. But the majority's reasoning seems to suggest that Member Becker's appointment will stand, or at least is not presumptively invalid. In light of the uncertainty of the issue, however, the debate over the validity of Member Becker's appointment will likely continue.

It is unknown how the Noel Canning decision and its after-effects will affect the Board's pursuit of its key objectives, including instituting quickie elections and allowing employees to use employer email to conduct union campaigns. It is likely that the NLRB will take several years to re-decide those cases that the unconstitutionally appointed Board members originally decided. The NLRB may work on its key objectives while incrementally re-deciding the invalid cases or it might put those key objectives on hold while it clears its docket of those cases. We will monitor the NLRB's activities and keep our readers apprised.


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.

© Faegre Baker Daniels | Attorney Advertising

Written by:

Faegre Baker Daniels

Faegre Baker Daniels 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.
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.