Supreme Court Holds 2012 Recess Appointments to the NLRB Were Invalid, Effectively Invalidates 20-Months of NLRB Decisions

Practical Law Legal Update 6-572-7465 (Approx. 9 pages)

Supreme Court Holds 2012 Recess Appointments to the NLRB Were Invalid, Effectively Invalidates 20-Months of NLRB Decisions

by Practical Law Labor & Employment

Background

Noel Canning, a bottling and distributing company, petitioned the US Court of Appeals for the District of Columbia Circuit to set aside an NLRB Order (358 N.L.R.B. slip op. 4, (Feb. 8, 2012)), claiming that the Board did not have the required quorum of three members when it issued the decision because:

President Obama's January 4, 2012 appointments of three of the five Board members (Members Griffin, Block and Flynn), purportedly made under the constitutional recess appointment power, were made while the Senate was not in recess.
The vacancies filled by the three members did not happen during "the recess of the Senate," as required for recess appointments under the Constitution.

On January 25, 2013, the DC Circuit issued an opinion granting Noel Canning's petition and vacating the Board's decision. The DC Circuit unanimously concluded that:

The term "the recess" in Article II, Section 2 of the Constitution refers only to the recess between Senate sessions, not breaks within sessions (inter-session recesses but not intra-session recesses).
Because President Obama's appointments of Members Griffin, Block and Flynn were made on January 4, 2012, after Congress had begun a new session on January 3, 2012, and while that session continued, the appointments were invalid.
The Board therefore lacked a three-member quorum when it issued its decision on February 8, 2012.
In the absence of a quorum, the Board's decision must be vacated.

Two of the judges on the DC Circuit panel also would have found that the appointments were invalid because they filled vacancies that occurred when the Senate was in session (Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013).)

For more information, see Legal Update, DC Circuit Rules NLRB Recess Appointments Were Unconstitutional; Enforceability of All Recess Appointees' Decisions in Doubt and Article, The Impact of Noel Canning v. NLRB: Expert Q&A.

On June 24, 2013, the US Supreme Court granted the NLRB's petition for certiorari in NLRB v. Noel Canning, agreeing to consider whether President Obama's recess appointments to the NLRB were valid under the US Constitution. In addition to the questions posed in the petition, the US Supreme Court directed the parties to brief and argue whether the President's recess-appointment power may be exercised when the US Senate is convening every three days in pro forma sessions. (NLRB v. Canning, 133 S. Ct. 2861 (2013).)

(For more information, see Legal Update, US Supreme Court to Review Noel Canning, Scope of President's Recess Appointment Authority.)

Outcome

Justice Breyer wrote the court's opinion, which Justices Kennedy, Ginsburg, Sotomayor and Kagan joined. The Supreme Court held that:

The Constitution empowers the President to fill any existing vacancy during any recess, inter- or intra-session, of sufficient length.
The Senate was in session during its pro forma sessions. Therefore, the President made the recess appointments of Members Griffin, Block and Flynn during a three-day recess. Three days is too short a period to bring a recess within the scope of the Recess Appointments Clause (Clause). Therefore, the President lacked the constitutional authority to make those recess appointments.

The US Supreme Court noted that the Clause gives the President constitutional power 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."

In determining how to apply this Clause, the Court considered the following three questions:

Does the language "Recess of the Senate" refer only to an inter-session recess (break between formal sessions of Congress) or does it also include an intra-session recess, for example a summer recess in the midst of a session? The Court concluded that the Clause applies to both inter-session and intra-session recesses.
Does the language "Vacancies that may happen" refer only to vacancies that first arise during a recess, or does it also include vacancies that come into being before a recess but continue to exist during the recess? The Court concluded that the Clause applies to both types of vacancies, whether they first arise during or before a recess.
When calculating the length of a "recess" should the Court ignore pro forma sessions and therefore treat the series of brief pro forma sessions as a single, month-long recess? The Court concluded that it could not ignore the pro forma sessions.

The Court noted that it did not wish to "upset the compromises and working arrangements that the elected branches of Government themselves have reached."

In determining that the Clause applies to both inter-session and intra-session recesses, the Court found that:

Founding-era dictionaries define "recess" simply as "a period of cessation from usual work." The Founders could have used the word to refer to intra-session as well as inter-session breaks and did not expressly exclude intra-session breaks from the Clause's application.
The inclusion of the word "the" before "recess" suggests that the phrase is referring to the single break that separates the formal sessions of Congress because inclusion of the word "the" usually means the phrase is referring to a particular thing. However, the word "the" also refers to a term used generically or universally.
Historical records suggest that the phrase "the recess" was used to refer to intra-session recesses at the time of the founding.
The Clause's purpose supports a broader interpretation since it gives the President authority during "the recess of the Senate" to ensure that the government continues to function while the Senate is not in session. The Senate is equally away during both inter- and intra-session recesses. Its ability to participate in recess appointments is not connected to the word used to refer to its absence.
Historical presidential practices support the broader interpretation. As the Senate has trended towards more frequent intra-session and shorter inter-session breaks in recent times, presidents have made more intra-session recess appointments.
Publicly available opinions of presidential legal advisors are nearly unanimous that the Clause authorizes intra-session appointments.
Restricting the validity of the Clause to inter-session recesses would make the President's recess appointment power dependent on a "formalistic definition of Senate procedure." Presidents have consistently and frequently applied "recess" to intra-session recesses and acted on that interpretation. Further, the Senate has not challenged the validity of this practice for at least 75 years.

In concluding that the Clause applies both to vacancies arising during and continuing into a recess, the Court found that:

The language of the Clause when read literally permits the broader interpretation that it applies to vacancies that initially occur before a recess and continue to exist during the recess. The natural meaning of "happens" as applied to a vacancy is that the vacancy happens when it initially occurs.
The purpose of the Clause, to permit the President to obtain assistance of subordinate officers when the Senate, due to a recess, is unable to confirm them, strongly supports the broader interpretation.
While both the broad and the narrow interpretation carry risks of abuse (the broad interpretation, for example, might permit a president to avoid all Senate confirmations by allowing him to fill up all vacancies that occur before and continue to exist during the Senate recess with recess appointees), the narrow interpretation carries greater risk of undermining the constitution. The narrower interpretation would potentially prevent the President from making any recess appointment that arose before a recess, even in an emergency situation. Therefore, the broader interpretation is more consistent with the Constitution's "reason and spirit."
Historical practice over the past 200 years also favors the broader interpretation. There is an established practice of applying the Clause to pre-recess vacancies. Every president since James Buchanan has made recess appointments to pre-existing vacancies.
Study of the list of intra-session appointments in the Solicitor General's brief and other random samples show that a large proportion of the recess appointments in the history of the US have filled pre-existing vacancies.
The 1940 Amendment to the Pay Act authorizing salary payments to recess appointees whose vacancies did not initially occur during a recess but happened to exist during that recess, in effect supported the President's broad interpretation of the Clause.
The President has consistently and frequently interpreted the Recess Appointments Clause to apply to vacancies that initially occur before, but continue to exist during, a recess of the Senate. The Senate has not objected to this practice for almost 75 years. Therefore, the overwhelming mass of actual practice supports the President's interpretation.

Finally, in concluding that it could not ignore the pro forma sessions, the Court found that:

For the purposes of the Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business.
Applying this standard, pro forma sessions count as sessions, not as periods of recess, because:
- the Senate said it was in session; and
- the Senate's rules make clear that during its pro forma sessions, despite its resolution to conduct no business, the Senate retained the power to conduct business simply by passing a unanimous consent agreement. Much Senate business is conducted this way.
As the Senate was in session during its pro forma sessions, the President made the challenged recess appointments during a three-day recess. Three days is too short a period to bring a recess within the scope of the Clause. Therefore, the President lacked the constitutional authority to make those recess appointments.
It is appropriate to presume that a recess of four to nine days is also too short a period for the President to use the Clause, unless the administration can demonstrate that an emergency condition necessitated an appointment in that brief recess without Senate approval.

Justice Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, wrote a separate opinion concurring in the judgment of the majority, but explaining that they would have held that the President's recess appointments power is substantially more limited than the majority ruled. In particular, the concurring judges found the Clause was not ambiguous, and ambiguous past practices that infringed on the Constitution should not change the framers' intentions that:

The Clause applies only to inter-session recesses.
The President may use recess appointment powers only to fill vacancies that opened during a Senate inter-session recess.

Practical Implications

This decision is important because it is the first time that the US Supreme Court has considered the scope of the President's power to make recess appointments. Further, this holding has serious repercussions as it means that any NLRB decisions that Members Griffin, Block and Flynn participated in as recess appointees are now rendered invalid and unenforceable for lack of a three-member quorum.

The ruling does not state that it invalidates other earlier recess appointments. The Senate has confirmed the appointments of each of the current Board Members. The fact that the Board now has a valid quorum however does not lessen the controversy regarding decisions that Members Griffin, Block and Flynn participated in, but it may permit the Board, comprised of similarly-minded appointees, to revoke the decisions invalidated under this decision and re-issue opinions in those cases reaching the same conclusions (perhaps with new dissenting opinions). If the NLRB's actions after the Supreme Court's New Process Steel decision are any indication of what it may do after this case, parties may expect that the NLRB will:

Vacate decisions that the Board issued between January 4, 2012 and August 2, 2013.
Move the US Court of Appeals to dismiss without prejudice any petitions for enforcement or review related to decisions that the Board issued between January 4, 2012 and August 2, 2013 in light of this decision.
Issue a new decision in each of the cases, relying on the factual and legal conclusions expressed in the majority opinions of the vacated decisions. The new members may add brief supplemental analysis in footnotes and the new Republican members may add new dissenting opinions echoing former Member Hayes's dissents from many of the 2012 cases.
Petition for enforcement of the newly "rubber-stamped" decisions in desired circuit courts less than three days after issuing them.

It should also be noted that petitions are pending with the US Supreme Court and cases are pending in the Courts of Appeals regarding the April 2010 recess appointment of former Member Craig Becker (see Legal Update, Third Circuit Joins DC Circuit in Condemning NLRB Intrasession Recess Appointments; Casts Doubt on Validity of Other Recess Appointees' Decisions). If the Supreme Court grants certiorari in those cases, it will likely be in part to resolve an emerging circuit court split about whether recess appointment challenges are non-jurisdictional and therefore can be waived (see Legal Updates, Eleventh Circuit Joins Circuit Split on Recess Appointments' Effect on NLRB Quorum, Summarily Rejects Employer Argument, NLRB's Finding that Nurses Were Not Supervisors Was Unsupported by Substantial Evidence, Employer's Recess Appointment Argument Could Be Forfeited: Sixth Circuit and Eighth Circuit Joins One Circuit Split and Creates Another, Holds Employer's Challenge to NLRB Recess Appointments Is Nonjurisdictional and Waived).

The effect of this decision on future recess appointments remains to be seen and will likely depend on which political party controls the Senate. For example, if the Republican party takes control of the Senate during this year's midterm elections, it could technically prevent the President from making any recess appointments next year by refusing to ever recess for more than a few days at a time.

Supreme Court Holds 2012 Recess Appointments to the NLRB Were Invalid, Effectively Invalidates 20-Months of NLRB Decisions | Practical Law