The Lawletter Vol 38 No 3
John Buckley, Senior Attorney, National Legal Research Group
On January 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit held that President Obama lacked authority under the Constitution to fill three of the National Labor Relations Board's ("NLRB") five seats through "recess appointments" made on January 4, 2012. Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013). The President attempted to fill the seats after Congress began a new session on January 3 and while that new session continued. The court's decision emphasized the Constitution's use of the word "the" in the phrase "the Recess" in the Recess Appointments Clause of Article 2. Under this Clause, the President has the power to make recess appointments only between sessions of CongressCso‑called "intersession appointments," according to the court. This decision is significant not only for the NLRB, but also for all federal agencies.
The controversy arose after three seats on the Board came vacant between 2010 and 2012. President Obama tried to fill all three seats on January 4, 2012, when the Senate had declared it was in session, but the President claimed that Congress was in a recess because the Senate was operating only pro forma sessions every three business days from December 2, 2011 through January 23, 2012.
The court's ruling resulted from an appeal by the corporate employer Noel Canning, a division of the Noel Corporation, which argued that a quorum of three NLRB members did not exist on the date the Board rendered an order adverse to the employer. Specifically, the NLRB had ruled that the employer had violated the National Labor Relations Act by failing to reduce to writing and execute a collective bargaining agreement reached with Teamsters Local 760. A quorum was lacking, according to the employer, 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.
Specifically, the Recess Appointments 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 employer argued that the phrase "the Recess" refers to the intersession recess only. The Board argued that "the Recess" also includes intrasession recesses, noting that the Eleventh Circuit has interpreted the language in that fashion. The District of Columbia Circuit agreed with the employer, stating: "As a matter of cold, unadorned logic, it makes no sense to adopt the Board's proposition that when the Framers said 'the Recess,' what they really meant was 'a recess.' This is not an insignificant distinction. In the end, it makes all the difference." 705 F.3d at 500.
Moreover, the court noted that for nearly a century after the Constitution was ratified, no president had ever attempted intrasession recess appointments, and for decades thereafter such appointments were exceedingly rare.
Although the court limited its decision invalidating the NLRB ruling to the Noel Canning case, the decision calls into question the validity of all NLRB decisions issued after the date the purported recess appointments were made. No doubt anticipating a petition for review of the case to the Supreme Court, the court of appeals issued orders holding in abeyance other appeals presenting the same recess appointment issue. On March 12, 2013, the NLRB announced that it will not seek an en banc rehearing of the case in the District of Columbia Circuit; rather, it will file a petition for review by the Supreme Court. Given the importance of the issue and the conflicting decisions of the Eleventh and the District of Columbia Circuits, it appears likely that Supreme Court review will be granted. For more detailed analysis of this decision, and a discussion of recent NLRB rulings that may be invalid as a result, see http://www.nlrg.com/employment-law-legal-research/.
