Noel Canning v NLRB: D.C. Circuit Holds NLRB Recess Appointments Unconstitutional

On January 25, 2013, the District of Columbia Circuit ruled that President Obama's appointment of three individuals to the NLRB a year earlier exceeded his powers under the Constitution. The case interprets the Recess appointments clause literally, and very narrowly, and concludes that the agency lacks a quorum and is unable to conduct business. Indeed, the decision's interpretation of the Recess appointments clause is narrow enough to call into question most if not all prior recess appointments, and could invalidate not merely decisions involving the most recent recess appointees but prior rulings issued by the NLRB when other recess appointees formed the Board's three person quorum. The decision surely will be appealed to the Supreme Court by the Administration, but unless overturned, is of enormous significance to the practice of labor law.

Background

President Obama appointed three individuals to the NLRB - Sharon Block, Richard Griffin, and Terence Flynn - on January 4, 2012, claiming the power to make such appointments without the "advice and consent" of the Senate under the Constitution's Recess appointments clause, Article II, Section 2, which reads:

The President shall have 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.

At the time these appointments were made, the Senate had just begun its new legislative session but was holding pro forma sessions, whereby one Senator would convene the Senate every three days but the body would conduct no business.1 The effect of these pro forma sessions, a practice that originated towards the end of the second term of President George W. Bush, was to prevent the President from making recess appointments by ensuring that the Senate was never in recess. President Bush chose not to challenge the practice and did not make recess appointments at the end of his second term, resulting in the NLRB shrinking to two members. The Supreme Court, in New Process Steel, L.P. v NLRB, 130 S. Ct. 2635 (2010), held that the NLRB must have three members to constitute a quorum, and has no power to act with only two members. President Obama, seeking to avoid that result, made the recess appointments after the new Congress convened on January 3, 2012, claiming that the Senate really was not in session when it convened on a pro forma basis conducting no business.

The Ruling

The D.C. Circuit read the Recess...