U.S. Supreme Court Issues Historic Noel Canning Decision

The unanimous decision on presidential recess appointment powers strikes down three National Labor Relations Board recess appointments and effectively invalidates hundreds of Board decisions issued between January 2012 and August 2013.

The U.S. Supreme Court in its June 26 decision in National Labor Relations Board v. Noel Canning1 unanimously invalidated three of President Obama's recess appointments to the National Labor Relations Board (NLRB or Board). In doing so, the Court voided potentially hundreds of Board decisions, dating as far back as January 4, 2012, and provided what is widely viewed as a significant victory to the employer community. Many of those Board decisions were extremely controversial, interpreting the National Labor Relations Act and promoting employee and union rights in unprecedented ways. The Court was, however, divided on the scope of the president's recess appointment power, with the majority opinion broadly interpreting that power.

Background

The issue before the U.S. Supreme Court arose after President Obama used his recess appointment power to fill several vacancies on the NLRB. Article II, Section 2, of the U.S. Constitution, referred to as the "Recess Appointments Clause," provides as follows:

The 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.

The Recess Appointments Clause provides an exception to the ordinary "advice and consent" role for the Senate and permits appointments absent Senate confirmation. On January 4, 2012, President Obama made three recess appointments to the NLRB. Those appointments were made one day after Member Craig Becker left office, leaving the five-seat Board with only two confirmed members and without the three-member quorum necessary to issue decisions. In an effort to avoid effectively shuttering the agency during what likely would have been an extended Senate confirmation process for new appointees, President Obama appointed Sharon Block, Richard Griffin, and Terence Flynn to the Board as recess appointments.

Parties subject to NLRB actions or decisions involving Members Block, Griffin, and Flynn thereafter challenged the validity of the recess appointments, arguing that the Board lacked the authority to either prosecute cases or issue decisions where part of the necessary three-member quorum was composed of a recess appointee.

Court of Appeals...