Hunton Employment & Labor Perspectives

In the most anticipated labor law case in years, the Supreme Court issued a unanimous judgment yesterday holding that the President’s January 2012 “recess” appointments of three members to the National Labor Relations Board was an invalid exercise of his Article II powers.   Noel Canning v. NLRB arose from a labor dispute in which the employer – Noel Canning – had unlawfully refused to execute a collective bargaining agreement with a labor union.  Noel Canning contested the Board’s unfair labor practice ruling on the grounds that, because three of the five Board members were invalidly appointed to the Board when the Senate was not in recess, the Board lacked a quorum to act and therefore had no authority to issue its ruling.

Writing for the majority, Justice Breyer concluded that the appointments were invalid because the Senate was not in “recess,” as required under the Recess Appointments Clause of Article II, but in pro forma session.  The Court reasoned the Senate “is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact the Senate business.”  The appointments at issue were made during a three-day break between two pro forma sessions, which the Court concluded  “is too short a time to bring a recess within the scope of the Clause.”   The Noel Canning decision is narrow in that it holds a three-day adjournment is not enough for the President to exercise his recess appointment powers.  But the Court left open the question as to what length break is sufficient under Article II:

“We therefore conclude, in light of historical practice, that a recess of more than three days but less than 10 days is presumptively too short to fall within the Clause.  We add the word ‘presumptively’ to leave open the possibility that some very unusual circumstance – a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response – could demand the exercise of the recess-appointment power during a short break.  (It should go without saying – except that Justice Scalia compels us to say it – that political opposition in the Senate would not qualify as an unusual circumstance.)”

While the judgment overturning the Presidential appointments was unanimous, the opinion was not.  The majority opinion resolved other contested aspects of the President’s Article II powers, namely that the President may make appointments during any recess – whether it be intra-session or inter-session.  The majority also ruled the President may fill during a valid recess any executive vacancies, including those that initially occur before a recess but continue to exist during the recess.  While Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined in the majority opinion, Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito disagreed with these specific rulings.  Justice Scalia argued in concurrence that the President may exercise his Article II power only during an inter-session recess, and may only fill a vacancy that comes into existence during such a recess. 

The immediate effect of the Noel Canning decision will be to void numerous decisions issued by the Board since the President’s recess appointments to the Board in January 2012.  However, now that the Board has a valid quorum due to the Senate confirmation of Mark Pearce, Kent Hirozawa, Harry Johnson III, Philip Miscimarra and Nancy Schiffer last July, the Board may act quickly on these voided decisions, as it did in 2010 after the Court’s decision in New Process Steel v. NLRB likewise voided numerous Board decisions.