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President's Recess Appointments Exceed Authority Based on Supreme Court Decision

06.26.14

After months of anticipation, the United States Supreme Court today issued its opinion in the Nat'l Lab. Relations Bd. v. Noel Canning case. No. 12-1281, slip op. at 1 (June. 26, 2014). By way of background, on January 2, 2012, President Obama made three appointments to the National Labor Relations Board while the Senate "was in recess pursuant to a December 17, 2011, resolution providing for a series of brief recesses punctuated by 'pro forma session[s],' with 'no business . . . transacted,' every Tuesday and Friday through January 20, 2012." Id. at 2. In a unanimous decision, the Court found that President Obama exceeded his authority by making these appointments. Id.

Cutting to the chase, what does this mean for employers? This decision calls into question the validity of the decisions from the National Labor Relations Board since the January 2, 2012 recess appointments. The new five member Board, including four members recently approved by the Senate, will likely be called upon to revisit many of those decisions.

Why did the Court reach this conclusion? The Court was tasked, for the first time, with interpreting the Recess Appointments Clause. See id. at 4, 9. The Clause is a constitutional provision that allows the President to temporarily appoint certain officers during a Senate recess. Id. at 6. But as the Court noted, the Clause does not offer "the President the authority routinely to avoid the need for Senate confirmation." Id. And while the Court was reticent to upset a long history of Presidential recess appointments, id. at 9, the Court found the Senate is in session when it says it is, id. at 36, unless, under its own rules, it lacks the "capacity" to act, id. at 35 (emphasis in original).

With that in mind, the Court found "that the pro forma sessions [between December of 2011 and January of 2012] were sessions for purposes of the Clause." Id. at 36. In doing so, it observed that the "Recess Appointments Clause is not designed to overcome serious institutional friction," and instead merely "provides a subsidiary method for appointing officials when the Senate is away during a recess." Id. at 40. On the other hand, the Court held that the Clause "empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length[,]" id., but "a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause," id. at 21.

The majority opinion was delivered by Justice Stephen Breyer and joined by Justices Anthony Kenney, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, and the concurring opinion was written by Justice Antonin Scalia and joined by Chief Justice John Roberts and Justices Clarence Thomas, and Samuel Alito.

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