The Third Circuit Court of Appeals ruled May 16, 2013, in NLRB v. New Vista Nursing & Rehab. that President Obama’s recess appointment of Craig Becker to the National Labor Relations Board (NLRB) during a 17-day intrasession break in 2010 was invalid. The Third Circuit reached the conclusion based on essentially the same reasoning as that relied upon by the District of Columbia Circuit Court of Appeals in its January 2013 Noel Canning ruling that Sharon Block, Richard Griffin and Terence Flynn’s January 2012 NLRB appointments were invalid. The Third Circuit decision, therefore, will make it far more difficult for the NLRB to disregard the D.C. Circuit’s ruling as a mere outlier. 

The Issue

At issue is when the president can bypass the U.S. Constitution’s appointment clause, which requires that presidential appointments be subject to the advice and consent of the Senate and, instead, can rely on the recess appointments clause. The recess appointments clause states, “The President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” In New Vista, the Third Circuit held that the president can only rely on the recess appointments clause during the period between Senate sessions when the Senate is, by definition, not in session and therefore, unavailable. It rejected the NLRB’s argument that the term “recess” includes a period when the Senate is holding pro forma sessions every three or four days. The Court similarly rejected a third “recess” definition, relied upon in an Eleventh Circuit Court of Appeals decision, which approved Senate recess appointments during both intersession breaks and intrasession breaks, which until President Obama’s January 2012 appointments, had been considered breaks of at least 10 days.

The Court’s Rationale

In reaching its conclusion, the Third Circuit looked at the relationship between the recess appointments clause and the appointments clause and found that, “the test and structure of the Constitution demonstrate that the Recess Appointments Clause is a secondary, or exceptional, method of appointing officers, while the Appointments Clause provides the primary, or general method of appointment.” The Court noted that the president always can fill vacancies through the appointments clause with Senate advice and consent, but the recess appointments clause explicitly allows him to fill vacancies unilaterally only during Senate recesses, revealing a constitutional preference for divided power over the appointments process that comes into play only in specific circumstances. The Court further explained that the recess appointments clause’s primary purpose is not only to allow the president to fill vacancies to help the government function, but rather, its restrictive use is critical in preserving the Senate’s advice-and-consent power by limiting the president’s unilateral appointment power. 

The Court explicitly rejected the NLRB’s contention that this view would give the Senate too much power to engage in mischief designed to prevent the president from exercising his recess appointment power by manipulating the timing of types of adjournments, noting that such abuse is present under any “recess” definition, including potentially allowing the president to engage in mischief. In response to arguments that the Court’s decision could create gridlock in the making of important appointments, the Court pointed out that the constitution’s division of powers demonstrates that “[c]onvenience and efficiency are not the primary objectives — or the hallmarks — of democratic government.” The Court explained that it is not its role to regulate how the other two branches of the federal government use their constitutional powers because the Court lacks the factual record, institutional tools and constitutional authority to decide which branch is more or less likely to abuse the powers granted to them. Rather, the Court’s responsibility is to decide what powers each branch possesses and when they may use them.

What Happens Now

On April 25, 2013, the NLRB filed a petition in the Noel Canning case, asking the U.S. Supreme Court to review the D.C. Circuit’s decision. It is likely the NLRB will similarly petition the Supreme Court to review the Third Circuit’s New Vista decision. The latter decision will make it more difficult for the NLRB to ignore opposing views concerning the recess appointments clause’s meaning and may create more reason for the Supreme Court to grant certiorari. Some have called for the NLRB to curtail activity until the Supreme Court rules on this issue since these adverse appellate rulings have invalidated NLRB decisions made during the recess appointees’ tenure and these circuits would similarly invalidate future cases brought before them on the same grounds. The D.C. Circuit’s Noel Canning decision makes this particularly concerning since the D.C. Circuit has jurisdiction to accept all NLRB appeals. The NLRB, however, has not yet stated whether this most recent ruling will change its position. We will keep you apprised of further developments concerning this issue.