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Tuesday, July 1, 2014

NLRB v. Noel Canning: United States Supreme Court Invalidates "Recess Appointments" to NLRB

On January 4, 2012, President Obama used recess appointments to name three members to the National Labor Relations Board. On January 25, 2013, the Court of Appeals for the D.C. Circuit held that the President lacked constitutional authority to make these recess appointments. Noel Canning v. NLRB, 705 F.3d 490, (D.C. Cir., 1/25/13) (discussed here). 

Last week, a unanimous Supreme Court of the United States agreed that the appointments at issue were invalid. Justice Breyer wrote the majority opinion, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. The Court's introduction to the decision does a nice, concise job of describing the holdings. I have added a couple of comments and quotations from other parts of the opinion in brackets. I have also added the slip op. page numbers. 
Ordinarily the President must obtain “the Advice and Consent of the Senate” before appointing an “Office[r] of the United States.” U. S. Const., Art. II, §2, cl. 2. But the Recess Appointments Clause creates an exception. It gives the President alone the 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.” Art. II, §2, cl. 3. We here consider three questions about the application of this Clause.   
The first concerns the scope of the words “recess of the Senate.” Does that phrase refer only to an inter-session recess (i.e., a break between formal sessions of Congress), or does it also include an intra-session recess, such as a summer recess in the midst of a session? We conclude that the Clause applies to both kinds of recess. [However, an intra-session recess must be of "substantial length" to allow for recess appointments, and "a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause."] [Slip op. at 9-21.] 
The second question concerns the scope of the words “vacancies that may happen.” Does that phrase refer only to vacancies that first come into existence during a recess, or does it also include vacancies that arise prior to a recess but continue to exist during the recess? We conclude that the Clause applies to both kinds of vacancy.  [Slip op. at 21-33.] 
The third question concerns calculation of the length of a “recess.” The President made the appointments here at issue on January 4, 2012. At that time the Senate was in recess pursuant to a December 17, 2011, resolution providing for a series of brief recesses punctuated by “pro forma session[s],” with “no business . . . transacted,” every Tuesday and Friday through January 20, 2012. S. J., 112th Cong., 1st Sess., 923 (2011) (hereinafter 2011 S. J.). In calculating the length of a recess are we to ignore the pro forma sessions, thereby treating the series of brief recesses as a single, month-long recess? We conclude that we cannot ignore these pro forma sessions ["We hold that, for purposes of the Recess Appointments 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."] [Slip op. at 33-40.] 
Our answer to the third question means that, when the appointments before us took place, the Senate was in the midst of a 3-day recess. Three days is too short a time to bring a recess within the scope of the Clause. Thus we conclude that the President lacked the power to make the recess appointments here at issue.  [Slip op. at 40-42. ] 
Justice Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, reached the same result, but would have gone further, holding as follows: 
First, [the recess appointment power] may be exercised only in “the Recess of the Senate,” that is, the intermission between two formal legislative sessions. Second, it may be used to fill only those vacancies that “happen during the Recess,” that is, offices that become vacant during that intermission. 
The majority opinion is more narrow than it may have been. Rather than determining that all past recess appointments not meeting the opinion's standards are invalid, the Court held only that the three specific appointments at issue -- those appointments to the NLRB made by President Obama on January 4, 2012 -- are invalid.  

SCOTUSblog, which is an excellent resource, has a number of interesting pieces discussing the opinion here

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