In a narrow ruling, the United States Supreme Court held that President Barack Obama’s January 2012 recess appointment of three members to the National Labor Relations Board was unconstitutional. Noel Canning, a Yakima, Washington Pepsi-Cola distributor, appealed an adverse NLRB order claiming that the Board lacked a quorum to issue the order because three of the five Board members had been invalidly appointed. In late 2011, the nominations of the three members in question were still pending before the Senate when it passed a resolution for a series of “pro forma sessions” with no business transacted between the sessions. Invoking the Recess Appointments Clause found in Article II of the Constitution, which empowers the President to “fill up all Vacancies that may happen during the Recess of the Senate,” Obama appointed the three members between the January 3 and January 6, 2012 pro forma sessions. Without such appointments, the NLRB would have been without a quorum to decide cases. Noel Canning argued that the appointments were invalid because the 3-day adjournment between the two sessions was not long enough to trigger the Recess Appointments Clause.

The Recess Appointments Clause permits the President to fill any existing vacancy during any Senate recess, either intra-session or inter-session, of sufficient length. The Recess Appointments Clause is a secondary method of appointing federal officers. Typically, appointment of federal offices requires Senate approval, at least for certain “principal officers.” Presidents have used the Recess Appointments Clause since the beginning of the Republic to fill federal vacancies. Reaffirming this power, the Supreme Court held that recess appointments can be both necessary and appropriate in certain circumstances. The Supreme Court further stated that the goal of the Clause is to grant the President the power to make appointments during a recess, thus allowing the business of the federal government to continue, not to permit the President to routinely avoid Senate confirmation.

However, the Supreme Court held that the 3-day break between the “pro forma” sessions was too short a period of time to trigger the Recess Appointments Clause. The Court held that the phrase “Recess of the Senate” applies to both inter-session recesses, breaks between formal Senate sessions, and intra-session recesses, breaks in the midst of a formal session, of substantial length. After first determining that the “pro forma” sessions constituted Senate sessions because the Senate retained the power to transact business, the Court held that the 3-day break between the “pro forma” sessions was too short to permit the President to make appointments without first obtaining Senate confirmation.

As a result, Obama’s three recess appointments to the NLRB were determined to be constitutionally invalid and the action taken by the Board against Noel Canning was void. The fallout from the Supreme Court’s ruling could be immense. Approximately 800 decisions were issued by the Board between January 2012 and August 2013, all of which depended on the votes of Obama’s invalid recess appointments. Thus, the NLRB may have to reconsider hundreds of rulings made during this time, including some of its most significant and controversial decisions. Some commentators viewed the NLRB as “heavily partisan” during this time period. However, with a current 3-2 Democratic majority, major policy shifts by the NLRB seems unlikely. Of course, we will keep you updated on any significant action taken by the NLRB.

By Kenneth T. Short, kshort@dsda.com