The U.S. Court of Appeals for the D.C. Circuit ruled this morning that President Barack Obama’s January 2012 recess appointments of Members Richard Griffin, Terrence Flynn (who has since resigned), and Sharon Block to the National Labor Relations Board were unconstitutional because they did not occur during an intersession recess of the Senate. Without those three members, the court held that the Board did not have a quorum and could not act lawfully. If the court’s ruling stands, it would invalidate all the decisions made by the NLRB since Member Becker’s term ended on January 3, 2012. It also would leave the NLRB with just one validly appointed member.

In today’s decision, a three-judge panel of the court overturned the NLRB’s decision finding that Noel Canning, a contract canning and bottling facility based in Yakima, Washington, had violated the National Labor Relations Act. The court’s decision calls into question hundreds of NLRB decisions issued last year after the January 4, 2012, appointments, including some of the high profile decisions we have highlighted including those involving “micro-units,” dues checkoff, and jurisdiction over charter schools.

Noel Canning petitioned the D.C. Circuit to review the NLRB’s decision that the company had refused to execute a collective bargaining agreement reached with the Teamsters union. The NLRB had issued that decision after President Obama made his recess appointments.  In addition to challenging the merits of the decision, Noel Canning argued that the NLRB did not have a quorum because Members Griffin, Flynn, and Block were never validly appointed. Joined in support by 41 Republican Senators who had objected to the recess appointments, Noel Canning argued that the three members filled vacancies that did not happen during a “Recess of the Senate,” as Article II, Section 2 of the Constitution requires. Citing the Supreme Court’s decision in New Process Steel invalidating decisions issued by the so-called “two-member” Board, and numerous historical documents, the court agreed that the recess appointments were invalid, leaving the NLRB without a quorum, and vacated the Noel Canning decision.

The D.C. Circuit decided two important issues in today’s order. First, the court ruled that “the Recess of the Senate” mentioned in the Constitution is limited to intersession recesses only. The court rejected the NLRB’s arguments that President Obama acted properly because the Senate was in recess on January 4, 2012. The court ruled that the Senate had technically stayed in session when it conducted pro forma sessions every three days from late December 2011 through early January 2012. As examples of Senate actions during those sessions, the D.C. Circuit cited the Senate’s passage of a temporary payroll tax cut extension in late December, and its Constitutionally-required convening of the second session of the 112th Congress on January 3. Since President Obama made his three appointments to the Board on January 4, 2012, the day after Congress began its new session, the court found that the appointments “were invalid from their inception.” Since the Board lacked a quorum of three members when it issued its Noel Canning decision, the court vacated the decision.

Second, the court explained that the appointments were also invalid because the purported vacancies did not “happen” during a Senate recess. The Constitution’s Recess Appointments Clause only permits Presidents to fill “Vacancies that may happen during the Recess of the Senate.” The court reasoned that this required the vacancies to actually occur during the recess, rebuffing the NLRB’s argument that the Clause would apply to vacancies whenever they happened, provided that they still existed during a recess.

The Obama administration had also pointed to an opinion from the President’s own Office of Legal Counsel, which determined that a President had the power to determine when the Senate was in session. The court strongly rejected that argument, finding that “[a]llowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.” The court’s sweeping decision could raise questions about President Obama’s recess appointment of Richard Cordray to lead the Consumer Financial Protection Bureau, which other groups have challenged in a separate case.

The D.C. Circuit devoted several pages of its opinion to disagreements with other appellate courts on both of the important issues it decided. The differences over the meaning of “Recess,” and whether vacancies must actually happen, or can simply exist, during one, could serve as grounds for the Obama administration to seek review by the Supreme Court. The administration is expected to appeal the D.C. Circuit’s decision. We expect further developments in the case, and will monitor the NLRB’s position on this issue and provide further guidance as appropriate.

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