U.S. Supreme Court Invalidates President’s NLRB Appointments

by Chambliss, Bahner & Stophel, P.C.

The United States Supreme Court yesterday invalidated President Obama’s January 2012 recess appointments to the National Labor Relations Board. In the widely anticipated case of NLRB v. Noel Canning, the Court concluded that the appointments were unconstitutional because the President exceeded his authority under the Recess Appointments Clause of the U.S. Constitution.

Because the appointments were improper (and thus invalid), the NLRB lacked a quorum and could not lawfully act during the time that the recess appointees were on the NLRB. As a result, the cases that the NLRB decided from January until August 2013 are invalid because the board was not properly appointed. This means that dozens of NLRB cases — including important cases concerning social media and the continued expansion of rights under section 7 of the NLRA — must be re-decided by the now-properly constituted and Senate-confirmed NRLB.

Noel Canning : A Case of Constitutional Interpretation

Noel Canning required the Supreme Court to interpret the Recess Appointments Clause, which it had not done in more than 200 years. The Clause allows the President alone to "fill up all Vacancies that may happen during the Recess of the Senate." It therefore creates an exception to the general requirement that the President must obtain "the Advice and Consent of the Senate" before appointing an officer of the United States.

The case arose out of President Obama’s January 4, 2012 recess appointment of 3 members to the NLRB, purportedly under the authority of the Clause. The President contended that the appointments were proper because the Senate was in recess when they were made — Congress had begun a new session on Tuesday, January 3, 2012, with a pro forma session followed by brief recess and then another pro forma session on Thursday, January 6, 2012. But Noel Canning challenged the appointments as unconstitutional, and the case eventually wound up before the U.S. Supreme Court.

In reaching its decision, the Supreme Court looked to the Clause’s text, relevant precedent, and historical practices of the Legislative and Executive branches of the federal government. Based on its analysis, the Court concluded that:

  1. "Recess of the Senate" applies to inter-session and intra-session recesses, meaning that the challenged appointments were not invalid because they occurred during an intra-session recess.
  2. "Vacancies that may happen" applies to vacancies that arise before a recess and those that first occur during a recess. The appointments therefore were not invalid because the vacancies first occurred before the recess.
  3. The Senate’s pro forma sessions cannot be ignored, and thus the Senate was in the midst of a 3-day recess when the challenged appointments were made.

The Court ultimately determined that a recess of more than three days but less than 10 days is presumptively too short to fall within the Clause. The President’s recess appointments therefore were not permitted under the Clause.

What Happens Next?

Because the recess appointments failed to pass constitutional muster, the NLRB did not have the authority to act when it decided hundreds of cases. Although this represents a significant victory, employers should not expect vastly different rulings the second time around. While these cases now must be reexamined by the current Senate-confirmed board, the labor-friendly board likely means that any new decisions simply will result in "more of the same." But the administrative task of simply processing and ruling on these decisions in addition to board’s current docket could temper the board’s continued implementation of its agenda through new rulemaking and decisions.


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.

© Chambliss, Bahner & Stophel, P.C. | Attorney Advertising

Written by:

Chambliss, Bahner & Stophel, P.C.

Chambliss, Bahner & Stophel, P.C. 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.