Noel Canning: Supreme Court Invalidates President's NLRB Recess Appointments

Author: Melissa Gonzalez Boyce, XpertHR Legal Editor

June 27, 2014

The Supreme Court unanimously ruled in Noel Canning v. NLRB that President Obama's three recess appointments to the National Labor Relations Board (NLRB) in January 2012 are invalid and unconstitutional. This decision is critical for employers because, by concluding that the President lacked the power to make the three recess appointments to the NLRB, the NLRB lacked the legal authority to issue over 800 (including several controversial) decisions that affect both union and non-union workplaces.

In affirming the lower court's decision, the Court took a lengthy look at the circumstances under which a president may invoke the Recess Appointments Clause (Clause) to "fill up all Vacancies that may happen during the Recess of the Senate." In particular, Justice Stephen Breyer, writing for the Court, addressed:

• Whether the scope of the words "recess of the Senate" refers to both inter-session recesses (i.e., breaks between formal sessions of Senate) and intra-session recesses (i.e., breaks in the midst of a formal session); and
• Whether a three-day recess was too short to trigger the President's authority.

The lower court had invalidated the President's three appointments made in January 2012 because it determined that the Senate was not technically out of session. As a result, the lower court held that the five-member board did not have the required three-member quorum. Not surprisingly, this ruling left numerous NLRB decisions in limbo and led to various legal challenges regarding the NLRB's authority to issue decisions on or after January 4, 2012.

In interpreting the "recess of the Senate" provision, the Supreme Court gave great deference to the historical practice of presidential appointments made during both inter-session and intra-session recesses and noted that the Senate has never taken formal action to oppose the many intra-session appointments made in the last century and a half. Therefore, the Court, recognizing that the purpose of the Clause is to "ensure the continued functioning of the Federal Government when the Senate is away," concluded that a president is empowered by the Clause to fill any vacancy during any recess (either intra-session or inter-session) of sufficient length.

Next, the Court turned to whether there was sufficient time in the recess in question to trigger the Clause. The Court recognized that although the Clause is silent on how long a recess must be in order to fall within the 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 recess appointment power." The Court also noted that it had not found a single instance of a recess appointment made during an intra-session recess that was shorter than 10 days (other than the January 2012 appointments) and just a few made during inter-session recesses of 10 days or less. As a result, the Court ruled that "a recess of more than 3 days but less than 10 days is 'presumptively' too short to fall within the Clause." In adding the word "presumptively" the Court left open the option to make recess appointments in a "very unusual circumstance," such as a "natural disaster" that renders the Senate unavailable but requires an urgent response.

After ruling that the President lacked the authority to make the recess appointments during the three-day recess, the Court nonetheless continued to address whether the president can fill vacancies that initially occur before a recess but continue to exist during the recess (as in the case of Noel Canning) or whether he or she is limited to vacancies that first arise during a recess. In a decision favorable to the Obama administration, the Court ruled that, based on historical practice, presidents are able to fill vacancies regardless of when they occurred.

Notably, although the Court's decision is unanimous in holding that the NLRB recess appointments are invalid, Justice Antonin Scalia wrote a separate concurring opinion (joined by three other justices) explaining that they would have ruled that the president's power to invoke the Clause is substantially more limited than what the majority of the Court held.

During January 4, 2012 until July 30, 2013 (the time period in question here), the NLRB issued sweeping rulings addressing social media, off-duty conduct, discipline, confidential witness statements, internal investigations, and routine handbook policies. While this Court decision effectively invalidates all these decisions, it remains to be seen exactly how the NLRB will proceed.

In a statement, NLRB Chairman Mark Gaston Pearce said:

Until the NLRB releases additional information on how it will handle the decisions in question, employers are cautioned not to disregard any opinions or orders issued between January 4, 2012 and July 30, 2013.