Foundation Files Brief in NLRB v. Noel Canning Recess Appointments Case

By law, the National Labor Relations Board (NLRB) is composed of five members and cannot issue decisions or take other action in the absence of a three-member quorum. On January 3, 2012, one Board members term expired, leaving the Board with only two confirmed members. In order to avert an effective shut-down of the Board, on January 4, 2012 President Obama invoked the Recess Appointments Clause of Article II, Section 2 of the Constitution, and appointed three new Board members. On February 8, 2012, a three-member panel of the Board consisting of the three new Obama appointees issued an order finding that Noel Canning, a Pepsi bottler, violated various sections of the National Labor Relations Act. Noel Canning petitioned the federal court of appeals for the D.C. Circuit for review. On appeal, Noel Canning argued that the Board’s February 8, 2012, order was invalid because the Board did not have a valid quorum of three members at the time the order was issued because the recess appointments of Members Block, Griffin, and Flynn were unconstitutional.

In January, 2013, a unanimous three-judge panel of the D.C. Circuit concurred. Writing for the panel, Chief Judge David Sentelle found President Obama’s recess appointments to be constitutionally invalid for two reasons: first, the appointments were not made during the Recess as that term is used in the Recess Appointments Clause. Second, the vacancies filled by the President did not happen during the Recess of the Senate as required by the same provision.

Usually, senior officers of the United States and certain independent agency members, such as NLRB Board members, are nominated by the President and then appointed with the advice and consent of the Senate. U.S. Const. art. II, 2, cl. 2. The Constitution’s Recess Appointments Clause, however, provides an exception to the general rule and allows 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. Art. II, 2, cl. 3.

On the date of President Obama’s recess appointments to the NLRB, the Senate was operating pursuant to a unanimous consent agreement, under which the Senate met in pro forma sessions every third business day from December 20, 2011, through January 23, 2012. Under the 20th Amendment to the Constitution, however, Congress must assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January . . . . Amend. XX, 2. Accordingly, in order to fulfill its constitutional duty, the Senate officially convened the second session of the 112th Congress during the January 3 pro forma session.

The issue decided by the D.C. Circuit was whether the recess appointments made by President Obama the next day took place during the Recess of the Senate and the court held they did not because the Recess, as used in the Recess Appointments Clause, is limited to intersession recesses, that is, the time period between one session of the Senate and the next when the Senate is unavailable to act upon nominations from the President. President Obamas recess appointments to the Board took place not during an intersession recess, but while the Senate was holding pro forma sessions and after the second session of the 112th Congress was convened. The court of appeals relied on the text, the structure, and the history of the Constitution.

Although the D.C. Circuits holding on the first constitutional issue was sufficient to dispose of the case, the court considered an alternative basis for its conclusion that President Obama’s recess appointments were unconstitutional, holding by a 2-1 vote, that the clause only applies to vacancies that actually arise during the Senate’s recess, and not to vacancies that happen to exist at the time the recess begins.

The Noel Canning case raises important and fundamental issues of separation of powers. If affirmed, the D.C. Circuits decision (and a similar decision by the Third Circuit) will severely limit the Presidents power to fill vacancies under the Recess Appointments Clause.

The D.C. Circuit’s ruling in Noel Canning has several immediate implications for labor relations, the most important of which is the potential invalidation of all decisions issued by the NLRB since President Obama’s recess appointments on January 4, 2012. In New Process Steel v. NLRB, 130 S. Ct. 2635 (2010), the Supreme Court held that the NLRB could not legally render decisions or otherwise act without a quorum of at least three members. If the Supreme Court agrees with the D.C. Circuit that the President’s recess appointments were constitutionally infirm, more than 200 decisions issued by the Board from January 4, 2012 to the present will be invalid, unless promptly ratified by the current Board, which had new members confirmed by the Senate in November 2013. The Board decisions that may be nullified under New Process Steel includes several high-profile, controversial decisions concerning social media, employer confidentiality rules, off-duty employee access to employer property, dues check-offs, and employee discipline.

Additionally, if the Noel Canning decision stands, it is possible that all NLRB decisions from August 27, 2011, through January 3, 2012, will also be invalidated because on August 27, 2011 the terms of the Chairman and one member of the Board expired, leaving three members. However, one of those three was a recess appointment not made during an intersession recess. If, under the reasoning of Noel Canning, that appointment was unconstitutional, the Board has been acting without the necessary quorum since August 27, 2011 and all decisions from that date on could be nullified under New Process Steel.

Further, President Obama has made “recess appointments to other agencies, and if those appointments are challenged, decisions of those other agencies may be called into question.

The Foundations amicus brief in support of Noel Canning, authored jointly by the Foundation and the Washington, D.C. firm Wiley Rein, LLP, argues that the D.C. Circuit was correct in both of its holdings. Our brief examines in detail the contemporaneous understanding by the drafters of the Constitution of the terms the Recess and happen, canvassing eighteenth century dictionaries, the Federalist papers and other writings of the Founding Fathers, interpretations of the early Presidents and their Attorneys General, and legal scholars soon after the Constitution was ratified, as well as the Articles of Confederation and state constitutions that preceded the adoption of the Constitution. Our brief also articulates important separation of powers reasons the Constitutional Convention allocated the appointment power to both the Executive Branch and the Senate, rather than to the Executive only.

The Foundation’s brief can be read here.