The Lawletter Vol 39 No 6
John Buckley, Senior Attorney, National Legal Research Group
On June 26, 2014, the Supreme Court held that the President lacked authority under the Constitution to fill three of the five seats on the National Labor Relations Board ("NLRB" or "Board") through "recess appointments" made on January 4, 2012, during a three-day break between two pro forma sessions of the Senate. NLRB v. Noel Canning, 134 S. Ct. 2550 (2014)
(Breyer, J., joined by Kennedy, Ginsburg, Sotomayor, and Kagan, JJ.; Scalia, J., concurring in the judgment, joined by Roberts, C.J., and Thomas and Alito, JJ.). The case turned on the precise definition of the term "recess" within the meaning of the Constitution's Recess Appointments Clause ("Clause"). Although the Court acknowledged that the term includes both inter- and intrasession recesses and can apply to vacancies that occur before a recess commences, the January 2012 appointments were nevertheless invalid. The Court explained that the three-day period was too short to constitute a "recess" within the meaning of the Clause, and the pro forma sessions could not be construed as recesses, thereby lengthening the period. Because of the unconstitutionality of the appointment of the three Board members, the NLRB lacked a quorum when it rendered its decision in the case on appeal.
The controversy arose after three seats on the Board became vacant between 2010 and 2012. The President filled all three seats on January 4, 2012, during a three-day break between pro forma sessions of the Senate covering the period December 2, 2011 through January 23, 2012. The corporate employer, Noel Canning, received an adverse ruling from the NLRB after the three seats were filled. On appeal to the U.S. Court of Appeals for the District of Columbia Circuit ("D.C. Circuit"), the employer argued that a quorum of three members did not exist on the date the Board rendered the adverse decision. A quorum was lacking because only one member voting for the decision had been confirmed by the Senate; the other two owed their positions on the Board to the challenged recess appointments. (The Supreme Court had previously held in a 2010 decision, New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010), that the NLRB cannot act without a quorum of three members.) The D.C. Circuit agreed with Noel Canning, holding that the challenged recess appointments were invalid under the Clause and, therefore, that the NLRB had indeed lacked a quorum when it rendered the ruling against the employer. Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013). The Supreme Court granted review.
The Clause provides that "[t]he President shall have Power 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." U.S. Const. art. II, § 2, cl. 3. The D.C. Circuit had concluded that the phrase "the Recess" refers only to intersession recesses (i.e., breaks between formal sessions of the Senate). The NLRB argued that "the Recess" also includes intrasession recesses (i.e., breaks in the midst of a formal session), noting that the U.S. Court of Appeals for the Eleventh Circuit had interpreted the language in this fashion. See Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004) (en banc). Examining both the language of the Clause and historical practice, the Supreme Court determined that the phrase "the recess of the Senate" refers to both intersession recesses and intrasession recesses of substantial length. Specifically, a Senate recess of more than 3, but less than 10, days is presumptively too short to fall within the ambit of the Clause, but this presumption leaves open the possibility that some very unusual circumstance—such as a national catastrophe that renders the Senate unavailable but calls for an urgent response—could demand the exercise of the recess appointment power during a shorter break.
The D.C. Circuit had also held that the vacancies on the Board did not "happen" during the recess of the Senate within the meaning of the Clause. It was undisputed that the three vacancies had occurred on August 27, 2010, August 27, 2011, and January 3, 2012. The Supreme Court concluded, however, that the word "happen" in the Clause refers not only to vacancies that first come into existence during a recess, but also to vacancies that arise prior to a recess but continue to exist during the recess. This broader interpretation ensures that offices needing to be filled can actually be filled, whereas the narrower interpretation would prevent a President from making any recess appointment to fill a vacancy that arose before a recess, no matter who the official, how dire the need, how uncontroversial the appointment, and how late in the session the office fell vacant.
Lastly, the D.C. Circuit had held that the Senate was not in recess during its pro forma sessions in December 2011 to January 2012. The Supreme Court agreed, declaring that for purposes of the 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. In this case, the Senate had said it was in session, and its rules made clear that it retained the power to conduct business. The Court noted that the Senate could have conducted business simply by passing a unanimous consent agreement. Because the Senate was not in recess during its pro forma sessions, the challenged appointments to the NLRB had been made during a recess of only three days—a time period too short to constitute a "recess" within the meaning of the Clause. Therefore, the appointments of January 4, 2012 were invalid, and the Board lacked a quorum when it entered the ruling in the employer's case. The judgment of the D.C. Circuit was affirmed.
Notably, the Court did not address the legality of the actions taken by the Board when its quorum was made up of members whose appointments were declared invalid, but the actions can be presumed to be invalid as well. Because a number of the actions were reconsidered after the Board gained a full complement of members whose appointments were properly ratified by the Senate, however, the impact of the Court's decision will not be as great as it would have been without the subsequent Senate ratification and Board reconsideration. As for other presumptively invalid Board decisions, the NLRB's Office of Public Affairs has reported that more than 100 legal challenges to the January 2012 recess-appointee Board were pending before the Court's decision. (For a list of pending cases, visit Master List of Pending January 2012 Recess Appointee Cases (May 16, 2014), available at http://op.bna.com/dlrcases.nsf/r?Open=kerl-9l5kel.) Many—if not all—of these cases will likely be returned to the NLRB for reconsideration.