The U.S. Court of Appeals for the District of Columbia unanimously ruled today that President Barack Obama’s recess appointments to the U.S. National Labor Relations Board (NLRB) last year were “constitutionally invalid” because the Senate was not in recess at the time of the appointments. Noel Canning v. NLRB, 12-1115 (D.C. Cir. Jan. 25 2013).
The circuit court sided with Republican lawmakers and a canning company that challenged the appointments. The judges said the definition of “the Recess” in the Constitution’s Recess Appointments Clause is limited to the period between one Congress and the next, and that Congress had begun a new session at the time the president made the appointments. The Noel Canning ruling is the first substantive decision by a federal appeals court to the president’s recess NLRB appointments dating back to Jan. 4, 2012, while the Senate was holding so-called pro-forma sessions that sometimes involved a single senator appearing in the chamber every third day.
Senate Minority Leader Mitch McConnell and 41 other Republican senators filed briefs challenging the NLRB appointments. The NLRB did not issue an immediate comment on the court’s decision. However, the NLRB’s website lists more than 200 decisions issued since Jan. 4, 2012, and since the validity of all those decisions is now at issue, this case will most certainly be appealed to the Supreme Court. If this decision stands, those hundreds of NLRB decisions issued over more than a year may be invalid.