The U.S. Supreme Court has agreed to review whether President Obama lawfully exercised his constitutional recess appointment power with respect to recent National Labor Relations Board (NLRB) appointments.
From late December 2011 through late January 2012, the U.S. Senate met in brief pro forma sessions every three business days. On January 3, 2012, the Senate convened to commence the second session of the 112th Congress. On January 4, 2012, President Obama announced three NLRB recess appointments.
Subsequently, the Noel Canning Company appealed an unfair labor practice decision that had been issued by a three-member NLRB panel that included two recess appointees. The company argued that the Senate was in session when the appointments were made, and the vacancies that were filled did not occur between sessions of the Senate. As a result, the company argued that appointments were not valid and the NLRB did not have a quorum to decide its case.
In January 2013, the District of Columbia Court of Appeals agreed with the company and ruled in Noel Canning v. NLRB that the President did not lawfully exercise his recess appointment power in January 2012, and the recess appointments to the NLRB were unconstitutional. The appeals court vacated the NLRB’s decision, and the NLRB then requested review by the Supreme Court.
The case presents a constitutional question of extreme importance not only as to the NLRB, but also the legality of recess appointments that have been made to other major executive agencies as well, such as the Consumer Financial Protection Bureau. However, the effect of the appeal will go beyond the validity of the appointments themselves. If the Court of Appeals’ decision is upheld by the Supreme Court, the legitimacy of nearly 800 NLRB decisions issued since January 2012, in which the recess appointees participated, would be subject to challenge. And, the NLRB continues to hear and decide cases.
The appeal will be briefed over the next three months. The case will be set for oral argument and decided sometime during the next Supreme Court Term, which begins October 7, 2013.