Affirming a decision of the D.C Circuit Court of Appeals, the United States Supreme Court held in NLRB v. Noel Canningthat President Obama’s January 2012 recess appointments to the National Labor Relations Board (“NLRB”) were unconstitutional and thus the Board had no power to act.

Noel Canning challenged an order of the NLRB that required it to execute a collective bargaining agreement, claiming that the NLRB lacked a quorum because three of the five members were invalidly appointed through recess appointments when the Senate was not actually in recess. The Supreme Court agreed that the recess appointments—which were made by President Obama on January 4, 2012, in between January 3 and January 6 pro forma Senate sessions—were not properly within the scope of the Recess Appointments Clause (which gives the President the power to make appointments during a recess of the Senate).

While the NLRB is now properly constituted and Senate-confirmed, the hundreds of decisions previously issued by the improperly-constituted Board—including key decisions on employer social media policies and practices—have been invalidated by the Noel Canning decision.