Why it matters: Striking a blow to the President and the National Labor Relations Board, the U.S. Supreme Court held that three recess appointments made by President Barack Obama in January 2012 were invalid. The unanimous Court upheld the President’s ability to fill vacancies under the Recess Appointments Clause but held that the Constitution requires the recess to be “of sufficient length.” Unfortunately for the President, the three-day gap between a series of pro forma Senate sessions was held to be insufficient “to bring a recess within the scope of the clause,” Justice Stephen Breyer wrote for the Court. The practical implication for employers: Hundreds of decisions issued with the participation of the recess appointees between January 9, 2012, and August 4, 2013 (when three new appointees were confirmed by the Senate) are now ripe for reconsideration. Because Supreme Court precedent requires the Board to have a three-member quorum to operate, decisions issued with the inclusion of the recess appointees have been invalidated and other actions – such as the appointment of regional directors – could also be up for challenge.

Detailed Discussion

On January 4, 2012, President Barack Obama appointed three individuals – Sharon Block, Richard Griffin, and Terence Flynn – to the National Labor Relations Board (NLRB). Their nominations had been pending in the Senate, which was utilizing a series of brief recesses. Beginning December 17, 2011, the Senate adopted a resolution that it would take a break until January 23, 2012, but would hold pro forma sessions every Tuesday and Friday in the interim. President Obama made the appointments between the pro forma sessions on January 3 and January 6.

To make the appointments, the President invoked his powers under the Recess Appointments Clause of the Constitution, Article II, Section 2, Clause 3. The Clause grants the President the power “to fill up all Vacancies that may happen during the Recess of the Senate.”

The Board, complete with the three recess appointments, found that Noel Canning unlawfully refused to reduce to writing and execute a collective bargaining agreement with a labor union. The Pepsi-Cola distributor was ordered by the Board to execute the agreement and make employees whole for any losses.

Noel Canning appealed the decision, arguing that because three of the five members of the Board were invalidly appointed, the decision should be set aside. The District of Columbia Circuit Court of Appeals agreed, and with hundreds of other decisions potentially on the line, the U.S. Supreme Court granted certiorari on the NLRB’s writ.

Emphasizing historical practice and the fact that the Recess Appointments Clause is intended to be a subsidiary, not primary, method for appointment, the majority reviewed hundreds of years of presidential appointments, opinions by Attorneys General, and Senate actions to conclude that because President Obama’s appointments occurred during a three-day break, they were invalid.

Writing for the majority, Justice Stephen Breyer broke his analysis into three issues: whether the Clause applied to any type of recess – intra-session or inter-session; if the recess must be of a certain length; and whether a vacancy must occur during the recess or if the President had the power to fill a preexisting vacancy, as he did with the NLRB appointees.

First, the majority held that the Clause applies to either an inter-session or an intra-session recess. “The Senate is equally away during both an inter-session and an intra-session recess, and its capacity to participate in the appointments process has nothing to do with the words it uses to signal its departure,” the Court said. And the upshot of a restriction limiting the Clause to inter-session recesses “would frustrate its purpose.”

The Clause itself does not state how long a recess must be in order for a President to make a valid appointment. But the Court ruled that a three-day break was too short, with breaks lasting from 4 days to 10 days presumptively too short. “We add the word ‘presumptively’ to leave open the possibility that some very unusual circumstance – a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response – could demand the exercise of the recess-appointment power during a shorter break,” Justice Breyer explained.

Finally, the majority determined that the phrase “vacancies that may happen during the recess of the Senate” applies both to vacancies that first come into existence during a recess as well as to vacancies that initially occur before a recess and continue into the break. This Court found the broad interpretation of the phrase to be compatible with the “spirit, reason, and purposes” of the Clause and supported by historical practice.

The Court declined to follow the Solicitor General’s suggestion and engage in an in-depth factual appraisal of what the Senate actually did during its pro forma sessions, finding such a review to be both legally and practically inappropriate.

Although the decision was unanimous, Justice Antonin Scalia authored a concurrence joined by Chief Justice John Roberts, and Justices Clarence Thomas and Samuel Alito, in which he disagreed with the bulk of the majority’s reasoning.

Cautioning that the majority’s decision “transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates,” Justice Scalia wrote that the Clause should not apply to intra-session recess periods and be limited to vacancies that arise during the recess in which they are filled.

To read the opinion in NLRB v. Noel Canning, click here.