Supreme Court Finds Invalid President’s Recess Appointments To The NLRB


In a 9-0 decision in National Labor Relations Board v. Noel Canning, the United States Supreme Court found today that President Obama’s 2012 recess appointments of three members to the National Labor Relations Board were invalid.  In doing so, the Court limited the President’s recess appointments power and potentially invalidated hundreds of NLRB decisions (for the time being).

The Constitution grants the President authority “to fill up all Vacancies that may happen during the Recess of the Senate” on a temporary basis without the normally-required Senate approval.  At issue was what constituted a “Recess of the Senate” and “Vacancies that may happen.”

According to the Supreme Court, a “Recess” not only takes place between Senate Sessions (inter-Session), but also can occur during a Session (intra-Session).  The Supreme Court held, however, that the President’s appointment authority could only be exercised during a recess that was a significant interruption of legislative business – “presumptively” a break lasting at least 10 days.  The recess in question was only three days, which the Court deemed to be too short to trigger the President’s recess appointments power.  By using the word “presumptively,” the Court recognized that there may be a “very unusual circumstance” during which recess appointments power could be exercised – but that circumstance did not exist here.

The Court also held that “Vacancies that may happen” not only included vacancies that came into existence during the recess, but also included those that existed at the time the recess began.

The practical effect of the decision is that from January 3, 2012 to July 30, 2013, the NLRB did not have the required number of members to conduct business.   Any NLRB decisions issued during this time period are therefore open to challenge; however, the current Democratic-majority Board will likely affirm the previously-issued decisions.  Doing so will take months, and one interestin possibility is that, upon the expiration of the term of one of the Democratic Board members this December, and if the Republicans take a majority in the Senate during this fall’s elections, gthey will likely block any further Board nominations by President Obama.  This could leave the Board in a 2-2 tie, which will make affirmation of the “invalid” decisions more uncertain.