As anticipated, the U.S. Supreme Court announced that it will review the U.S Court of Appeals for the D.C. Circuit’s decision invalidating the president’s recess appointments to the National Labor Relations Board, in NLRB v. Noel Canning. On January 25, 2013, the D.C. Circuit held that President Obama’s January 4, 2012, recess appointments of Members Sharon Block, Terence Flynn, and Richard Griffin were unconstitutional and, thus, the Board lacked a legitimate quorum to proceed since the recess appointments were made. The D.C. Circuit’s decision passes doubt on hundreds of decisions issued by the Board, including many significant precedent-departing decisions. The Noel Canning decision further implicates the president’s recess appointment powers, generally.
In Noel Canning, the D.C. Circuit analyzed the “Recess Appointments Clause” in the U.S. Constitution and determined that it only authorized appointments during recesses between enumerated sessions of Congress (intersession recess), i.e., after the Senate adjourns one session and before the Senate convenes the next session, because during that period the Senate is unavailable to act upon the president’s nominations.
The D.C. Circuit concluded that the Senate was not in intersession recess on January 4, 2012. On that date, the Senate was operating in pro forma sessions, meeting every third business day. In addition, and as required by the 20th Amendment to the Constitution, “Congress must assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January . . . [.]” Accordingly, on January 3, 2012, the Second Session of the 112th Congress began, simultaneously with the expiration of the First Session of the 112th Congress. Thus, President Obama’s January 4, 2012, recess appointments took place while the Senate was holding pro forma sessions and after the Second Session of the 112th Congress was convened on January 3, 2012.
The D.C. Circuit also considered the types of vacancies that can be filled under the Recess Appointments Clause, and determined that only those vacancies arising during the recess can be filled, and not those merely existing during the recess.
The Board, in petitioning the Supreme Court to review Noel Canning, insisted that the president’s recess appointment powers are not limited to recesses that occur between Senate sessions, and further challenged the D.C. Circuit’s strict limitations on the vacancies that may be filled by recess appointments. In addition to these issues, the Supreme Court requested that the parties address whether the presidential recess appointment power can be exercised while the Senate is convening in pro forma sessions.
There is no doubt that Noel Canning could significantly shape modern labor law, invalidate hundreds of Board decisions, and influence the future composition of the Board given its limitations on the presidential recess appointment power and the vacancies suitable for recess appointments. Employers and labor law practitioners will be closely monitoring Noel Canning as it proceeds through the U.S. Supreme Court’s October 2013 term.