U.S. Supreme Court Restricts President’s Exercise of Recess-Appointment Power
Legal updates
U.S. Supreme Court Restricts President’s Exercise of Recess-Appointment Power
June 26, 2014
On June 26, 2014, the U.S. Supreme Court issued a long awaited decision in NLRB v. Noel Canning, No. 12-1281 (Vote: 9 – 0). Essentially, the Court ruled that the three recess appointments President Obama made to the National Labor Relations Board (“NLRB” or “Board”) in January 2012 were unconstitutional. The Court’s decision has the potential effect of invalidating hundreds of Board decisions and orders.
This high-profile case stems from a petition by Noel Canning, a Pepsi-Cola distributor, asking the D.C. Federal Circuit Court of Appeals to set aside an NLRB order (Noel Canning, 358 NLRB No. 4 (2012)) because three of the five Board members had been unconstitutionally appointed. The nominations of the three members in question were pending in the Senate when the President exercised his power under the Recess Appointments Clause – which empowers the president “to fill up all Vacancies that may happen during the Recess of the Senate.”
Particularly in light of historical practice, the Court held that the clause gives the President substantial recess appointment power to fill exiting vacancies during any intra or inter-sessions. Because it determined that the Senate was in session (pro forma), the Court held that the appointments at issue were made during a 3-day recess. However, “a recess of more than 3 days but less than 10 days is presumptively too short to fall within the [Recess Appointment] Clause.” A Senate recess that is so short that it does not require the consent of the House is not long enough to trigger the President’s appointment power. The President’s recess appointments to the NLRB were made on January 4 2012, in between the Senate’s January 3 and January 6 pro forma sessions. “Accordingly, the appointments were made during a 3-day adjournment, which is not long enough to trigger the Recess Appointments Clause.”
NLRB v. Noel Canning will undoubtedly have an immediate impact on labor relations. In New Process Steel v. NLRB (2010), the Supreme Court ruled that the NLRB must render decisions with a quorum of at least three members; otherwise it cannot exercise its powers. Indeed, the Court acknowledged that the NLRB order issued to Noel Canning is effectively invalid. Therefore, many decisions, including high-profile social media, employee handbook, and dues check-off decisions are likely invalid and will have to be revisited by the Board.
Immediately after the Supreme Court released its Noel Canning opinion, the NLRB Chairman issued a statement indicating that the Board is analyzing the impact of the decision on all Board cases in which the recess appointees participated. The Board indicated that “it is committed to resolving any cases affected by [the Supreme Court’s] decision as expeditiously as possible.”
The CBS LLP Legal Advisory is prepared for general information purposes only. The summaries of recent court opinions and other legal developments are not necessarily inclusive of all the recent legal authority of which you should be aware when making your legal decisions. Thus, while every effort has been made to ensure accuracy, you should not act on the information contained herein without seeking more specific legal advice on the application and interpretation of these developments to any particular situation.
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