NLRB v. Noel Canning

National Labor Relations Board v. Noel Canning, 573 U.S. ___ (2014), was a United States Supreme Court case in which the Court unanimously ruled that the President of the United States can only use his authority under the Recess Appointment Clause of the United States Constitution when the United States Senate is in recess and not able to transact Senate business. The Court held that the clause allows the president to make appointments during both intra-session and inter-session recesses, but only if the recess is of sufficient length, and if the Senate is actually unavailable for deliberation. The Court also ruled that any vacancy in an office can be filled during the recess, regardless of when it arose. ^[1] The case arose out of President Barack Obama's appointments of Sharon Block, Richard Griffin, and Terence Flynn to the National Labor Relations Board and Richard Cordray as the director of the Consumer Financial Protection Bureau.^{[2][3][4][5][6][7]}

Background

In Federalist No. 67, Alexander Hamilton writes that the appointment power is ordinarily confined jointly to the President and the Senate, but, considering it unlikely that the Senate would remain continuously in session, the Constitution allows the President to make temporary appointments when the Senate is in recess. Since the advent of air travel, the United States Senate no longer needs to have long recesses. This has potentially changed the meaning of the Recess Appointment Clause of the Constitution, which has affected the way the Senate and the President interact.

This case deals specifically with Noel Canning, whose business was adversely affected by the ruling of the National Labor Relations Board, and has potential implications on the Executive Branch's power to appoint people without Senate approval. The NLRB had found that Canning refused to execute a collective bargaining agreement with a labor union, allegedly in violation of federal law. Canning appealed the board's ruling to the D.C. Circuit claiming that three of its five members were invalidly appointed, leaving the board without a quorum of lawfully appointed members (the Court had previously held in New Process Steel, L. P. v. NLRB, 130 S. Ct. 2635 (2010), that the board cannot act without a quorum). The D.C. Circuit vacated the NLRB orders.^[8] In a similar case, the Fourth Circuit held that the NLRB could not enforce its orders because of lack of quorum caused by the ineffectiveness of recess appointments made by President Obama while the Senate was not in recess.^[9]

Opinion of the Court

Justice Breyer wrote the opinion of the Court, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Breyer, writing for the Court, stated, "We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business."^[10][11]

The first question the opinion addressed dealt with the scope of the phrase "the recess of the Senate" and whether that is limited to the inter-session recess between the two formal annual sessions of a Congress, or extends to intra-session recesses (such as the traditional August recess, etc.). Given the ambiguity of the specific text of the clause, the Court held that the clause's purpose is broad, allowing the President to ensure the continued functioning of government even when the Senate is away. However, despite finding that "the recess" means both inter- and intra-session recesses, the Court added that a recess which is not long enough to require the consent of the House of Representatives is not long enough to trigger the Recess Appointment Clause.

Secondly, the Court addressed the phrase "vacancies that may happen during the recess of the Senate" (emphasis added). Thomas Jefferson admitted that the clause is subject to two constructions, and the Court argued that a narrow interpretation risks undermining powers granted by the Constitution. The opinion found that the phrase applies to both vacancies that occur during a recess, and those which occur before and continue to exist through a recess.

Finally, the opinion dealt with the calculation of the length of the Senate's recess. During periods of recess, the Senate meets in pro forma sessions to satisfy the requirement that neither house may adjourn for more than three days without the consent of the other house. While the Solicitor General argued that the Senate was not actually in session despite these sessions, the Court found that pro forma sessions count as sessions, not recesses, consistent with the Constitution's delegation of authority to the Senate to determine how it conducts its own business. However, this deference is not absolute: when the Senate is without the capacity to act (i.e. if all senators effectively gave up the business of legislating), it is in recess even if it says it is not.

Scalia's concurrence

Justice Scalia wrote an opinion concurring in the judgment, joined by Chief Justice Roberts, Thomas, and Alito. While agreeing with the conclusion the Court reached, the concurrence chastises the opinion for ensuring "that recess appointments will remain a powerful weapon in the President's arsenal. ... That is unfortunate, because the recess appointment power is an anachronism."

Subsequent developments

Senate Majority Leader Harry Reid said that the ruling underscored "the importance of the rules reform Senate Democrats enacted last November." Minority Leader Mitch McConnell agreed with the ruling, saying that "[t]he President made an unprecedented power grab by placing political allies at a powerful federal agency while the Senate was meeting regularly and without even bothering to wait for its advice and consent. A unanimous Supreme Court has rejected this brazen power-grab."^[12]

Senator Orrin Hatch, a Republican and former chairman of the Senate Judiciary Committee, said that the Court had "emphatically rejected President Obama’s brazen efforts to circumvent the Constitution, bypass the people’s elected representatives, and govern above the law [and] reaffirmed the Senate’s vital advice-and-consent role as a check on executive abuses."^[13][14]

External links

• Transcript of oral argument in NLRB v. Noel Canning
• D.C. Circuit ruling
• Fourth Circuit ruling on a similar case
• Decision by the Third Circuit Court of Appeals expanding the issue to include former Board Member Craig Becker
• "Recess Appointments: Frequently Asked Questions." Congressional Research Service. June 7, 2013

References