Supreme Court Hears Arguments on Validity of NLRB Recess Appointments

Kollman & Saucier
Kollman & Saucier

It turns out that schoolchildren aren’t the only ones who care about how long recess is.  On Monday, the Supreme Court heard oral arguments in National Labor Relations Board v. Noel Canning, No. 12-1281, a case that is expected to decide how to allocate power between the President and Senate when it comes to recess appointments and could result in the invalidation of hundreds of NLRB decisions .

For those unfamiliar with the case, by January 3, 2012, the NLRB had only two active members; the three other seats had become vacant on August 27, 2010, August 27, 2011, and January 3, 2012, respectively.  At least three members are required for a quorum before the Board may rule on any case.  Ordinarily, NLRB members are all presidentially appointed and, by statute, require “the advice and consent of the Senate” before they may report to work.

At that point in time, however, the Senate was not around to give either advice or consent.  The chamber was not in regular session from December 17, 2011 through January 20, 2012.  Perhaps mindful of the Adjournments Clause in Article I, section 5, which prohibits the House or Senate for “adjourn[ing] for more than three days” without the consent of the other chamber, the Senate was instead operating under an adjournment order, under which it would have only so-called “pro forma sessions” every three days.  The pro forma sessions included gaveling in and gaveling out, but “no business” was allowed to be conducted.

On January 4, in the midst of the adjournment, President Obama appointed three new NLRB members (Sharon Block, Terence Flynn, and Richard Griffin) without consulting the Senate’s views on the subject.  He invoked Constitutional authority to make these appointments under the Recess Appointments Clause in Article II, section 2, clause 3, which permits the President to “fill up . . . Vacancies that may happen during the Recess of the Senate.”  Thus, the President reasoned, the Senate’s adjournment was “the Recess” that allowed him to make these appointments all by himself.

The D.C. Circuit disagreed with the President.  Although the NLRB had continued to render opinions in cases since that date, the D.C. Circuit held that the Board lacked a valid quorum when it rendered a decision against Noel Canning upholding administrative findings of a labor law violation on February 8, 2012, because President Obama’s appointments were not made during “the Recess.”  The D.C. Circuit concluded that the use of “the Recess” meant that there could be only one Recess – namely, the recess between legislative sessions.  Therefore, the court concluded, there really was no intersession recess at all; “the First Session of the 112th Congress expired simultaneously with the beginning of the Second Session.”  In addition, the court explained, the three vacancies did not “happen” during the Recess, because each arose when the Senate was still in session.

So, what does “the Recess” mean?  There appears to be no precedent that controls the outcome, although, as the Solicitor General noted, it has been a long-standing practice (with hundreds of recorded examples) of Presidents to fill vacancies during breaks in the middle of a legislative session.  Although Noel Canning (unsurprisingly) prefers the D.C. Circuit’s interpretation, several alternatives were considered, including:

1. “a period of cessation from usual work”, such as a 10- or 20-day break;

2.  any adjournment lasting more than 3 days (based on the Adjournments Clause); and

3.  whenever the President determines that the Senate is in recess.

A fourth position emerged at oral argument, when Chief Justice Roberts, Justice Kennedy, Justice Breyer, and Justice Kagan each separately pondered whether the Senate itself should have discretion to determine whether it is in “the Recess.”  This fourth alternative has the potential added benefit of allowing the Supreme Court to effectively punt the issue under the cover of the “political question” doctrine, deferring to the Senate’s choice of how it sees fit to govern itself.

The widely reported case is both fascinating for wonkier “armchair Constitutional scholars,” and all those whose lives are affected by the business of the NLRB.  If the Court affirms the D.C. Circuit opinion, the potential consequences are enormous.  Will any decision rendered by the NLRB where the quorum included Members Block, Flynn, and/or Griffin be invalidated?  Will the decision apply only to cases going forward?  There are, as was noted at oral argument, a number of doctrinal arguments for keeping intact what was already decided, but it appears that a case-by-case “hashing out” of the arguments would be required.  It will be fascinating to see what the Court decides to do on this novel issue between now and the end of its term.

For general coverage of this case, including links to the oral argument transcript and the parties’ briefs, see

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