Date: Jun 26, 2014
U.S. Supreme Court Unanimously Strikes Down President’s NLRB Recess Appointments

The U.S. Supreme Court issued a unanimous ruling Thursday that President Barak Obama’s recess appointments to the National Labor Relations Board during a brief Senate break in 2012 were invalid, finding that the Senate was not in recess when the appointments were made. The decision calls into question hundreds of rulings made by NLRB when the board was controlled by Obama’s appointed board members in 2012 and part of 2013.

"Because the Senate was in session during its pro forma sessions, the president made the recess appointments before us during a break too short to count as recess," wrote Justice Steven Breyer for the majority. The recess appointees – Sharon Block, Richard Griffin and Terence Flynn – had been blocked from confirmation by Republicans, and were later appointed by Obama during a three-day recess in January 2012. The Court ruled that three days is too short a time to bring a recess within the scope of the Recess Appointments Clause, so the president lacked the authority to make those appointments. Justices Kennedy, Ginsburg, Sotomayor and Kagan joined to form the majority opinion, holding that presidents may only exercise their appointment powers during recesses of 10 or more days. 

Five justices for the majority refused to completely eliminate the power of the president to fill vacancies when the Senate was not conducting any business, as the D.C. Circuit Court had done. Justice Antonin Scalia, in a concurring opinion joined by Chief Justice Roberts, and Justices Thomas and Alito, sought to further constrain executive power, saying recess appointments are only constitutional when vacancies arise during a true recess.

The case, NLRB v. Noel Canning, arose out of a dispute between the NLRB and a Pepsi-Cola distributor, Noel Canning. The NLRB had ruled against him in a labor dispute, but Canning claimed that the Board lacked a quorum because three of the five Board members had been invalidly appointed. The nominations of the three members in question were pending in the Senate when it passed a resolution providing for a series of “pro forma session[s],” with “no business . . . transacted,” every Tuesday and Friday through January 20, 2012.

“In our view, however, the pro forma sessions count as sessions, not as periods of recess. 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. The Senate met that standard here,” Breyer wrote for the Court.

WG Staff Contact

Jason Resnick
Sr. Vice President & General Counsel

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