On June 26, 2014, the United States Supreme Court held in NLRB v. Noel Canning that President Barack Obama’s recess appointment of three National Labor Relations Board members was invalid. The Board members were appointed on January 4, 2012, when the President invoked the U.S. Constitution’s Recess Appointments Clause, which allows the President to fill vacancies during a Senate recess. The President appointed the Board members during a three-day break between pro forma Senate sessions. When the Board subsequently issued an unfair labor practice order to a soft-drink distributor, Noel Canning, the distributor asked the Court of Appeals for the District of Columbia Circuit to set aside the order because it was issued without a quorum of three lawfully appointed Board members. The distributor argued that three of the five Board members at the time of the order were the result of the President’s unauthorized use of the Recess Appointments Clause and that their appointments were therefore invalid. The D.C. Circuit agreed, and on June 26 the Supreme Court affirmed that decision. However, the Supreme Court did not adopt the D.C. Circuit’s narrow interpretations of the scope of the Recess Appointment Clause, which had limited recess appointments to vacancies arising during a Senate recess and had characterized the period between the Senate’s pro forma sessions as an adjournment rather than a recess. (See our January 25, 2013 Legal Alert for a discussion of the circuit court’s ruling.) Instead, the Supreme Court held that the presidential power to make recess appointments is not limited to vacancies arising during a Senate recess but that, although the Senate was in recess at the time of the NLRB appointments at issue, “[t]hree days is too short a time to bring a recess within the scope of the [Recess Appointment] Clause, so the President lacked authority to make those appointments.”
The Supreme Court’s ruling in Noel Canning brings needed clarity to the President’s recess appointment authority, but leaves untouched the ultimate result that hundreds of decisions issued by the National Labor Relations Board between the January 2012 recess appointments and the July 2013 Senate confirmation of newly nominated Board members are invalid for lack of a quorum. The Board is currently rehearing many of these cases.