The NLRB and President Obama both took a hit last week from the Supreme Court when the Justices ruled unanimously that the President’s appointment of three members of the NLRB during a recess of the Senate was unconstitutional.  We wrote about this legal challenge to presidential power previously as the case made its way through the courts.  See our HR Insights Blog articles “Time for Recess – The Constitution Says NO” and “The NLRB is Going Straight to the Top.”

The Senate Is in Session When the Senate Says It Is in Session

The court, in its opinion, said for purposes of the Recess Appointments Clause of the U. S. Constitution, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business.  President Obama made the challenged “recess” appointments to the NLRB while the Senate was in session during a “pro forma” session.  The administration claimed that the Senate was in recess.  However, it was in session, and Senate rules make clear that the Senate retained the power to conduct business. The Senate could have conducted business simply by passing a unanimous consent agreement. The Court declined to engage in an in-depth factual appraisal of what the Senate actually did during its pro forma sessions in order to determine whether it was in recess or in session for purposes of the Recess Appointments Clause.

Because the Senate was in session during its pro forma sessions, the President made the recess appointments at issue during a three-day recess. The court said that three days is too short a time to bring a recess within the scope of the Clause, so the President lacked the authority to make those appointments.  It is not entirely clear how long a “recess” must be for it to really be a recess for purposes of the Constitution.  Stay tuned–there is sure to be a great deal to follow because the Court’s holding affects much more than just NLRB appointments.

Practical Effect

There were over 400 cases decided by the NLRB when its membership was composed of these unconstitutional appointments.  Many of those case were settled, but a large number will have to be reconsidered by the NLRB that is now at full strength with five members, all of which were appropriately appointed by the Senate.  The NLRB has publicly stated that it is looking into the effect of the holding and promises to resolve the issues expeditiously.  Whether that means wholesale adoption of the NLRB’s prior holdings or a case-by-case review of each remains to be seen.

Reference:  National Labor Relations Board V. Noel Canning et al. (U.S. Supreme Court June 26, 2014).