Tag Archives: Noel Canning

June 26, 2014

Recess Appointments to NLRB Invalid, Rules U.S. Supreme Court in Noel Canning Opinion

Mumaugh_BrianBy Brian Mumaugh 

In a unanimous decision, the U.S. Supreme Court ruled today that President Obama lacked the authority to make three recess appointments to the National Labor Relations Board (NLRB) while the Senate was in pro forma session in early January 2012.  While affirming the decision of the D.C. Circuit that the appointments fell outside the scope of the Recess Appointments Clause, the Supreme Court came to that conclusion on different grounds.  NLRB v. Noel Canning, No. 12-1281 (June 26, 2014). The decision effectively invalidates the rulings made by the three NLRB members who were improperly appointed via recess appointment. 

Recess Appointments Clause 

The Recess Appointments Clause gives the President the power “to fill up all Vacancies that may happen during the Recess of the Senate.”  This power essentially allows the President to fill vacant federal positions without obtaining Senate confirmation of the appointments and is intended to ensure the continued functioning of the government at those times when the Senate is not in session.  

At issue in the Noel Canning case was whether President Obama’s appointment of three members of the NLRB while the Senate was on a three-day intra-session break in which the Senate was in pro forma session fell within his authority under the Recess Appointments Clause.  The Supreme Court said no. 

Vacancies May Be Filled During Intra-Session and Inter-Session Recesses 

Unlike the D.C. Circuit, the Supreme Court ruled that the Recess Appointments Clause applies during intra-session recesses (breaks in the midst of a formal Senate session) as well as during inter-session recesses (breaks between formal sessions of the Senate).  The Court stated that the Senate is equally away and unavailable to conduct business during both types of breaks.  The Court also looked carefully at the history of recess appointments and found that Presidents have made intra-session recess appointments going all the way back to President Andrew Johnson in 1867.  During that time, the Senate has never taken any formal action to deny the validity of intra-session recess appointments.  Accordingly, the Court gave great weight to the long-standing practice of allowing recess appointments during both intra- and inter-session recesses. 

Recess Must Be Of Sufficient Length 

Although the Recess Appointments Clause does not establish how long a recess must be in order to trigger the President’s recess appointment power, the Court held that the Senate’s recess must be of sufficient duration as to be a significant interruption of legislative business.  Noting that the government’s attorney conceded that a three-day recess would be too short and that throughout history, no recess appointments had been made during an intra-session recess of less than ten days, the Court wrote that a recess of more than three days but less than ten days is presumptively too short to fall within the Clause. 

Vacancies Filled As Recess Appointments Need Not Arise During the Recess 

The Court interpreted the Recess Appointments Clause to allow the President to fill vacancies that existed prior to the start of the Senate’s recess.  The D.C. Circuit had interpreted the Clause differently, applying only to vacancies that first come into existence during a recess.  The Supreme Court chose a broader interpretation to ensure that offices that need to be filled can be filled, even if the vacancy arose before the Senate went into recess.  Again, the Court looked at historical practices and found that nearly every President since James Buchanan (term: 1857-1861) has made recess appointments to pre-existing vacancies.  Unwilling to counter this long-accepted practice, the Court ruled that any vacancy, whether pre-existing or one that arises during the recess, may be filled under the Recess Appointments Clause. 

Applying the Clause to the 2012 NLRB Recess Appointments 

The Court ruled that the President lacked the authority to appoint the three members of the NLRB in early 2012 because the Senate was still in session during that time.  Although the Senate was meeting just every three days in pro forma sessions, it retained the power to conduct business.  Consequently, because the Senate was in session and the three-days between its pro forma sessions was too short of a break to bring it within the scope of the Recess Appointments Clause, the President lacked the authority to make the three NLRB member appointments in January of 2012. 

Big Picture – Effect of Noel Canning  

There are two primary effects that will come out of today’s Noel Canning decision.  First, the NLRB rulings that were made by the improperly appointed members will need to be revisited.  Numerous challenges have already been made in some of the affected cases and the current NLRB, which now has five Senate-confirmed members, may need to revisit those rulings. 

Second, the future of Presidential recess appointments will hinge on the length of a Senate recess.  Political analysts are already stating that both the House and Senate have mechanisms to force the Senate out of a recess into a pro forma session so if those mechanisms are exercised, Congress could limit or block a President’s ability to make recess appointments.  We will likely learn a great deal about the scheduling powers of Congress in the days to come.

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January 16, 2014

(Un)Happy New Year for NLRB

National_Labor_Relations_Board_logo_-_colorBy Brad Williams 

The National Labor Relations Board began 2014 on a sour note, conceding defeat on its controversial “Poster Rule” and facing skeptical Supreme Court justices in the blockbuster Noel Canning case testing the president’s power to appoint NLRB members under the Constitution’s so-called “Recess Appointments Clause.” 

“Poster Rule” Challenge Dropped 

On January 6, 2014, the NLRB announced that it would not appeal two federal circuit court decisions that had rejected the Board’s controversial “Poster Rule.” The rule, originally issued in 2011 under the NLRB’s long-neglected rulemaking power, required 6 million private employers to post a government-issued notice advising employees of their rights under the National Labor Relations Act. Business groups excoriated the rule as requiring posting of unbalanced information, and as violative of their free speech rights. Two federal circuit courts broadly agreed, holding that the Board lacked authority to issue the rule, and that its enforcement mechanisms were incompatible with the NLRA. 

Although the Board obtained extensions of time in which to appeal these decisions to the Supreme Court, it announced on January 6th that it had “decided not to seek Supreme Court review.” The Board urged that the poster could still be displayed “voluntarily,” but effectively conceded defeat in the litigation. A similar rule issued by the Department of Labor in 2010, and applicable only to federal contractors, remains on the books. However, one of the parties behind the successful challenge to the NLRB’s “Poster Rule” recently filed a lawsuit challenging the DOL’s rule on similar grounds. The DOL has not yet responded in that litigation. 

Skeptical Questioning in Noel Canning  

On January 13, 2014, the NLRB faced skeptical Supreme Court justices in oral argument in the blockbuster Noel Canning case. The case arose from a Board order finding that an employer had violated the NLRA by refusing to sign a collective bargaining agreement after orally agreeing to the contract. The employer, Noel Canning, appealed the Board’s decision to a federal circuit court on the basis that three of the Board’s members had been improperly appointed by President Obama, and that the Board’s unfair labor practice decision was accordingly void. 

The federal circuit court agreed, holding that the Board appointments had violated the Constitution’s so-called “Recess Appointments Clause.” That clause, which has never before been interpreted by the Supreme Court, provides that the president may “fill up all Vacancies that may happen during the Recess of the Senate.” President Obama had appointed the three Board members during a 2012 intra-session break in which the Senate had been convening every three days in pro forma sessions, but had been conducting no business. The federal circuit court held that the Recess Appointments Clause only permits presidential appointments between the Senate’s annual official “sessions,” and only for vacancies that have arisen during these inter-session breaks, not before. Because the federal circuit court found that the Board members’ appointments had been improper, it vacated the NLRB’s decision against Noel Canning. 

On January 13th, the Supreme Court held oral argument in the case which implicates such technical questions as whether presidential recess appointments are only permitted during inter- (as opposed to intra-) session breaks; whether the vacancies must arise during Senate recesses, not before; and whether the Senate is in recess when it conducts pro forma sessions every three days. Practically, these questions address the political struggle between presidents and the Senate over appointments, and threaten to eliminate a workaround presidents have increasingly used to place officials in top positions where their appointments would otherwise be delayed or rejected by the Senate.  

During the oral argument, the justices seemed broadly skeptical of the NLRB’s position that a robust recess appointment power is needed as a “safety valve” to deal with Senate intransigence; that the president (as opposed to the Senate) may decide when the Senate is actually in “recess;” and that a long history of presidential appointments seemingly at odds with the plain text of the Recess Appointments Clause justifies President Obama’s appointments in 2012. In particular, some justices seemed unpersuaded that there was an intelligible “limiting principle” that would permit a president to decide, on his own, whether the Senate was actually in “recess.” For instance, Justice Kennedy raised the prospect of “lunch break” appointments given the NLRB’s position. 

A decision in the Noel Canning case is expected by this June. The Supreme Court might avoid some of the case’s stickier questions, including whether the legal acts of improperly appointed officials dating back to the Washington administration are somehow void, by deciding the case on the narrow question of whether recess appointments are proper when the Senate is convening every three days in pro forma sessions. Curtailment of the president’s recess appointment power will have limited short-term effects following the Senate’s elimination of the filibuster for most presidential appointments last November. That change made President Obama’s need for the power far less pressing because Democrats currently control the Senate. However, any curtailment of the power is likely to have significant longer-term effects, particularly when different parties once again control the Senate and the presidency. 

Of course, should the recess appointment power be significantly curtailed come this June, future presidents may still always fall back on that old constitutional standby: “Advice and Consent of the Senate.”

Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.

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