In a relatively narrow ruling that may have far greater practical ramifications than constitutional ones, a unanimous US Supreme Court on Thursday struck down President Obama’s 2012 recess appointments to the National Labor Relations Board (NLRB or Board).
Writing for all nine Justices, Justice Stephen Breyer concluded that the Senate was not actually in “recess” for constitutional purposes at the time of the NLRB appointments, even though no business was conducted during the pro formasession when the appointments were made. Writing for only himself and Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, Justice Breyer nevertheless affirmed that the President may make appointments during any proper Senate recess, and that the President may do so even in cases in which the vacancy does not arise during the recess. Thus, in one sense, President Obama lost, but the presidency won.
Nothing in Justice Breyer’s opinion explains what happens to the hundreds of decisions rendered by the NLRB while the recess appointees were serving—without whom, the Board would have lacked a quorum. Thus, Thursday’s ruling leaves to the NLRB in the first instance the question of whether those rulings are necessarily void or voidable, or whether they will remain in force. The Board will now have to reconsider the validity of those earlier decisions, and it might also have to reconsider numerous other official acts, such as appointments of Regional Directors and other Board officials, that were taken by the recess-appointed members of the Board. It is at least possible that the NLRB will conclude that all of its rulings during the recess appointment period are invalid because the members of the Board were not properly appointed—and so no quorum existed.
In a statement issues today, NLRB Chairman Mark Gaston Pearce stated:
We are analyzing the impact that the Court’s decision has on Board cases in which the January 2012 recess appointees participated. Today, the National Labor Relations Board has a full contingent of five Senate-confirmed members who are prepared to fulfill our responsibility to enforce the National Labor Relations Act. The Agency is committed to resolving any cases affected by today’s decision as expeditiously as possible.
In 2012, Noel Canning, a Pepsi-Cola distributor in Washington State, asked the DC Circuit to set aside an order of the NLRB, claiming that the Board lacked a quorum because three of the five Board members had been invalidly appointed by President Obama while the Senate was in recess. The nominations of the three members in question were pending in the Senate when it passed a December 17, 2011, resolution providing for a series of “pro forma session[s],” with “no business ... transacted,” every Tuesday and Friday through January 20, 2012. Invoking the Constitution’s Recess Appointments Clause — which gives the President the power “to fill up all Vacancies that may happen during the Recess of the Senate,” the President appointed three members of the NLRB (Richard Griffin, Terrence Flynn and Sharon Block) during one of these “pro forma sessions.”
Noel Canning argued primarily that the appointments were invalid because the break was not long enough to trigger the Recess Appointments Clause. The DC Circuit agreed with Noel Canning, and held that the appointments were invalid because (1) even if the Senate was in recess, it was an intra-session recess, not an inter-session recess; (2) the vacancies that President Obama filled had not arisen during that recess; and (3) in fact, the pro forma sessions were not even a “recess” in the first place.
The Supreme Court
The Solicitor General, on behalf of the President, filed a writ of certiorarichallenging all three conclusions and presenting the following issues: (1) whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate; (2) whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess; and (3) whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.
Writing only for a five-Justice majority, Justice Breyer held that the Recess Appointments Clause empowers the President to fill any existing vacancy during any recess — intra-session or intersession — of sufficient length. This is a key holding in this case because it confirms that the President may act when the Senate is truly in recess, regardless of when the vacancy arose. But, Justice Breyer stressed, in order for such power to be available, the Senate must truly be in recess and the recess must be longer than three days (unlike the recess at issue in this case).
Second, for purposes of the Recess Appointments Clause, the unanimous Court ruled that the Senate is in session when it says that it is in session, provided that, under its own rules, it retains the capacity to transact Senate business — including giving advice and consent to presidential nominations. Importantly, if the Senate lacks the capacity to so act, under its own rules, it is not in session even if it so declares. Thus, the Senate may not simply declare that they are always in session in order to avoid a recess appointment; the test will instead be functional.
In conclusion, the Court agreed with the DC Circuit that the recess-appointments at issue in this case must be invalidated. Because the Senate could in fact transact business during its pro forma sessions, the President lacked the authority to make the NLRB appointments of Members Griffin, Flynn, and Block.
The Noel Canning case is most certainly a setback for the Obama Administration. However, the opinion is somewhat narrow in legal application. Although the Court affirmed the DC Circuit’s decision invalidating the appointments, it held that the President is allowed to fill any vacancies during any intra- or inter-session break, as long as the break is a true recess. Practically, these constitutional holdings can be frustrated by a Senate that frequently holds pro forma sessions. Legally, however, the President’s power was affirmed.
The major issue going forward is the backward-looking effect of the decision. Whether it will lead to the invalidation of hundreds of NLRB decisions and other actions, or whether those rulings and mandates will be upheld on other grounds, remains to be seen. The NLRB has estimated that there were 837 cases decided under the unconstitutionally formed Board, although not all of those decisions were published nor are they all still active and in need of review. It took the Board over three years to deal with only around 100 cases the last time it had to revisit cases in 2010. Thus, it could take years for the Board to get through the backlog of cases that this decision has created.