Federal Appeals Court Holds That President Obama's January 4, 2012 Recess Appointments to the NLRB Were Unconstitutional

January 24, 2013

By: Subhash Viswanathan

The U.S. Court of Appeals for the District of Columbia Circuit held today, in Noel Canning v. NLRB, that President Obama's recess appointments to the National Labor Relations Board ("NLRB") on January 4, 2012 were unconstitutional because the Senate was not actually in "recess" at the time of the appointments.  At least for now (pending a likely appeal to the U.S. Supreme Court), this holding essentially means that every decision issued by the NLRB from January 4, 2012 to the present is invalid because the NLRB lacked a valid quorum of three members during this entire time.  This holding also means that the NLRB currently has only one properly appointed member (Chairman Mark Gaston Pearce), and therefore lacks authority to issue any decisions or take any action going forward.

On January 4, 2012, President Obama appointed three members of the NLRB:  (1) Sharon Block, who was appointed to fill a vacancy that had arisen on January 3, 2012; (2) Terence Flynn, who was appointed to fill a vacancy that had arisen on August 27, 2010; and (3) Richard Griffin, who was appointed to fill a vacancy that had arisen on August 27, 2011.  At the time of the purported recess appointments, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011 through January 23, 2012.  During its January 3, 2012 pro forma session, the Senate acted to convene the second session of the 112th Congress and to fulfill its duty under the Twentieth Amendment to the U.S. Constitution, which provides that "the Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day."

In general, the U.S. Constitution requires that members of the NLRB (as officers of the United States) must be nominated by the President and appointed "by and with the Advice and Consent of the Senate."  However, the Recess Appointments Clause of the U.S. Constitution permits the President 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."

At the time President Obama appointed Members Block, Flynn, and Griffin, Republican Senators complained that the appointments bypassed the Constitutionally mandated Senate confirmation process for Presidential nominees.  In Noel Canning, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously agreed that the appointments were unconstitutional.

The Court initially determined that the term "the Recess" in the Recess Appointments Clause applies only to recesses that occur in between sessions of Congress -- not to breaks in activity that occur during a session of Congress.  The NLRB conceded during oral argument that the appointments were not made during the intersession recess; instead, they were made on January 4, 2012, one day after Congress began a new session on January 3, 2012.

The Court also found it significant that the Recess Appointments Clause only permits the President to fill vacancies "that may happen during the Recess of the Senate."  The Court interpreted this provision to mean that the vacancy actually must arise during the Senate's intersession recess in order for the President to have the authority to fill a vacancy without going through the Senate confirmation process.  The Court determined that none of the three vacancies that President Obama sought to fill on January 4, 2012 arose "during the Recess of the Senate," and found that the appointments were unconstitutional for this reason as well.

There is no doubt that this decision will be appealed to the U.S. Supreme Court.  We will provide updates on this blog as they become available.