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General Memorandum 14-049

General Memorandum 14-049
Supreme Court Rules President Obama's NLRB "Recess" Appointments Are Unconstitutional

On June 26, 2014, the U.S. Supreme Court decided National Labor Relations Board v. Noel Canning. The Court unanimously held that President Obama's 2012 "recess" appointments of three members of the National Labor Relations Board (NLRB) while the Senate was in a three-day recess were invalid. The Court ruled that the President's appointments were invalid under the Recess Appointments Clause in Article II, section 2 of the Constitution, writing that:

"Three days is too short a time to bring a recess within the scope of the Clause. Thus we conclude that the President lacked the power to make the recess appointments here at issue."

The Court's decision means that the NLRB lacked a quorum between January 4, 2012 until July 30, 2013 and the decisions made by the NLRB during that period are invalid.

Beginning in late 2007, the Senate began holding pro-forma sessions during intra-session recesses in an effort to prevent President Bush from using recess appointments to appoint officials whose nominations were being held up in the Senate. As explained at the time by Senate Majority Leader Harry Reid, "the Senate will be coming in for pro forma sessions … to prevent recess appointments." 153 Cong. Rec. S14609 (daily ed. Nov. 16, 2007).

That practice continued after President Obama took office. In the Canning case, the Senate refused to confirm the President's nominees to the NLRB which had been without a working quorum since 2007. In December 2011, the Senate scheduled a series of brief recesses during the holiday recess which lasted until January 23, 2012, holding pro forma sessions twice a week. Those sessions did not include any actual business. During a three-day break between two of those sessions, the President made three appointments to the NLRB.

In 2013, the U.S. Court of Appeals for the D.C. Circuit ruled that the President's appointments were invalid because the Recess Appointments Clause does not apply to recesses that take place within a formal session of Congress (an intra-session recess), but only to recesses between formal sessions of Congress.
The Supreme Court agreed with the result but used a different rationale in interpreting the Appointments Recess Clause. The Court held that the Clause allows the President to make appointments during a recess, regardless of whether it happens during a formal session of Congress or between sessions. The Court also held that the phrase "vacancies that may happen during the recess of the Senate" means both vacancies that start during a recess and vacancies that start before a recess but continue into the recess. Justice Scalia disagreed with both of those conclusions as described below.

While the President argued that the Senate was really in recess because it conducted no regular business in the month between December 18, 2011 and January 23, 2012, the plaintiff, Noel Canning, argued that the Senate is in recess when the Senate says it is. The Court agreed with Canning and found that even though the Senate did not conduct any business during the pro forma sessions, it still retained the power to do so. Finally, the Court concluded that a three-day recess – the period between the pro forma sessions – was not enough time to count as a recess under the Recess Appointments Clause. The Court stated that a recess of less than ten days is "presumptively too short to fall within the Clause" but left room for a shorter period in special circumstances such as a national emergency.

The majority's conclusions start with its view that the Recess Appointments Clause is itself ambiguous. Thus, the majority wrote that it should interpret the Clause in a manner that allows "the Executive to continue operating while the Senate is unavailable." The majority also stated that its holding was based on "centuries of history, which we are hesitant to disturb."

Justice Scalia wrote a concurrence that took great issue with the majority opinion. Scalia argued that the text of the Clause is unambiguous and allows the Executive only very limited powers. Scalia wrote that "the majority sweeps away the key textual limitations on the recess-appointment power." Scalia also said that the majority "justifies those atextual results on an adverse-possession theory of executive authority."

The Court's unanimous holding that President Obama exceeded his authority under the Constitution by attempting to unilaterally define when the Senate is in recess represents a strong reaffirmation of the principle of separation of powers between the Executive and Legislative Branches of government. We note that the Senate in 2013 confirmed President Obama's other nominees so that the NLRB currently has a functioning quorum.

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Inquiries may be directed to:
Chris Stearns (cstearns@hobbsstraus.com)
Joe Webster (jwebster@hobbsstraus.com)
Starla Roels (sroels@hobbsstraus.com)

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