The Law @ Work

Obama’s NLRB Appointments Ruled Unconstitutional

The Federal Appeals Court for the District of Columbia Circuit has ruled that President Obama violated the Constitution when he bypassed Congress to fill three vacancies on the National Labor Relations Board during a congressional recess in January 2012.  In Noel Canning v. NLRB, the court said it best itself: “While the posture of the petition is routine, as it developed, our review is not.”  In that case, Noel Canning appealed the Board’s decision and argued that the Board lacked authority to act because it did not have a quorum.  In making that argument, it reasoned that President Obama’s January 2012 appointments were made without Senate approval, and, therefore, not valid.

The Constitution requires that Board members, who are “Officers of the United States,” be nominated, consented to by the Senate, and appointed to their positions.  The Board did not dispute that President Obama did not get the advice and consent of the Senate when he appointed three members to the Board in January 2012, but it argued that the appointments were valid under the Recess Appointments Clause.  That clause provides that “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.”  Noel Canning argued that the appointments were outside of this exception for two reasons:  First, Congress was not in recess at the time the appointments were made because it was still holding pro forma sessions.  Second, even if Congress was in recess, the vacancies did not arise or happen during the recess, and, therefore the exception did not apply.

The court agreed with Noel Canning.  The Board argued that the term “recess” meant intrasession recesses or a period of basic adjournment, which theoretically could cover a long lunch, but the court strongly disagreed.  The court reasoned that if “recess” meant adjournment, the Framers would have said so.  The court held that the fact that the Framers used “recess” when it was used so rarely elsewhere, while adjournment was used often, implies that “recess” is not the same as a simple adjournment.  The court added that the Board’s interpretation of “recess” would permit the President to simply wait for an intrasession break, for any period of time, to bypass obtaining the Senate’s consent.  The court also noted the complete dearth of intrasession appointments in the decades following the ratification of the Constitution.  Thus, the court held that in order for an appointment to fall within the Recess Appointments Clause, the appointment must occur during an intersession break.  Since the President made the three NLRB appointments on January 4, 2012 after Congress began a new session on January 3, the court found that they were not made during “the recess” and the appointments were therefore unconstitutional.

Even though the court found the appointments unconstitutional under Noel Canning’s first argument, the court went on to address Noel Canning’s second argument, that in order for an appointment to be valid during the recess, the vacancy being filled must have occurred during the recess.   The court again agreed with Noel Canning.  The court reasoned that at the time the Constitution was ratified the term “happen” connoted an event taking place and arising at that moment, rather than existing for some period before.   Perhaps most importantly, the court noted that if it adopted the interpretation of the Board, a President at odds with the Senate over nominations could simply wait until the Senate took an intersession recess to make his appointments.  In the end, the court held that “happen” means that the vacancy first arises during the intersession recess, rather than existing prior to the recess.

The result of the court’s decision is a finding that the Board lacked a quorum since January 2012, because three of the five Board members had not been validly appointed.  As a result, the decision being challenged by Noel Canning was void.  This ruling potentially could void other Board decisions issued since January 2012; however, parties looking to overturn a Board decision will have to file their own individual lawsuit in order to do so.  The Obama Administration is expected to appeal this decision; we will be sure to keep you posted on any developments.

Share this