As we noted last month, the federal court of appeals in DC heard the first case on the constitutionality of the recess appointments to the NLRB.  Today, a three judge panel ruled unanimously that the appointments of Members Griffin, Block and Flynn were unconstitutional, meaning this court decided the NLRB has lacked a quorum since at least January 4, 2012.

The case is Noel Canning v. NLRB, No.12-115 (D.C. Cir. January 25, 2013).  Weighing in at a hefty 47 pages, it is a good mix of American history, Constitutional law and unabashed scepticism over the NLRB’s arguments.  The decision prompted the NLRB Chairman to immediately issue a statement expressing that the “Board respectfully disagrees with today’s decision and believes that the President’s position in this matter will ultimately be upheld.”  There are at least a dozen other cases challenging the recess appointments pending in various parts of the country so this will not be the last word.  Also, it is possible the Board may appeal the ruling to the United States Supreme Court and will continue on its course until that Court issues a ruling.


The three NLRB members received recess appointments on January 4, 2012.  Member Sharon Block filled a seat that became vacant on January 3, 2012 .  Member Terence Flynn (who has since resigned) filled a seat that became vacant on August 27, 2010.  Member Richard Griffin filled a seat that became vacant on August 27, 2011.

The Senate convened a new session on January 3, 2012 but was not actively conducting business.  The employer in the case, Noel Canning, asserted that since the Senate had convened a new session the recess appointments were invalid under the United States Constitution’s Recess Appointments Clause, Article II, Section 2, Clause 3 which provides in part:

The President shall have 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.

The employer argued that the Senate was not in “the Recess” at the time of the appointments, and that the vacancies themselves did not “happen” during a recess.  The court of appeals ruled that the Constitution was violated with respect to both issues.

When is a Senate recess “the Recess”?

At the time of the appointments, the Senate was on a three day break, which is commonly referred to as an “intrasession” recess.  An intercession recess occurs between normal breaks in Senate sessions, usually of a longer term.  So the issue was whether an intracession recess was sufficient for the President to make the appointments to the NLRB.

The court of appeals reviewed the history of the Recess Appointments Clause, including an extensive review of the thought process behind the language, as well as referring to a 1755 dictionary definition of the word “the” (which is an “article noting a particular thing” for those interested).    The court concluded that “the Recess” referred to intersession recesses and not the generally shorter intrasession ones, noting that the framers themselves were very specific in the word choice.  The court also found it significant that only three Presidents in the first 150 years of the Republic had made intrasession appointments, none of which occurred in the first 80 years after the Constitution was adopted.

In concluding that “the Recess” referred only to intersession recesses, the court ruled:

[W]e hold that “the Recess” is limited to intersession recesses.  The Board conceded at oral argument that the appointments at issue were not made during the intersession recess:  the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued.  Considering the text, history and structure of the Constitution, these appointments were invalid from their inception.  Because the Board lacked a quorum of three members when it issues its decision in this case on February 8 2012, its decision must be vacated.

Slip op. at 30.  The court found that to interpret “the Recess” to include other breaks in Senate business would “giv[e] the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch or even when the Senate is in session and he is merely displeased with its inaction.”

When a vacancy “happen[s] during “the Recess”

Two of the three judges on the panel went on to address the second issue raised by the employer, whether the vacancies being filled by the appointments “happen[ed] during the Recess.”  The third judge issued a separate concurring opinion in which he stated it was unnecessary to reach this issue because the ruling on “the Recess” was sufficient to dispose of the matter.

The employer argued that the vacancy must have occurred, i.e., arisen, during an intersession recess.  The NLRB argued for a more expansive interpretation, contending that the President may fill vacancies that “happen to exist” during the recess.  The court undertook a close examination of this word as it appears in the Recess Appointments Clause, concluding:

The power of a written constitution lies in its words.  It is those words that were adopted by the people.  When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government.  In light of the extensive evidence that the original public meaning of ‘happen’ was ‘arise,’ we hold that the President may only make recess appointments to fill vacancies that arise during the recess.

There was no dispute that the appointments at issue did not arise during an intersession recess, and so the court ruled them invalid.

Impact of the decision

Subject to the outcome of any review by the Supreme Court, the decision in Noel Canning could have a broad impact.  Starting with the NLRB, any decision issued since January 4, 2012, that was appealed to the DC Circuit will now be subject to the law of the circuit as expressed in Noel Canning.  Already, though, the DC Circuit has begun issuing orders holding in abeyance the other cases pending there which raise the recess appointment issue.

Cases that were appealed to other circuits will likely be processed through decision in those circuits – at least the lead cases.  In Chairman Pearce’s statement, he indicated that there were more than a dozen cases pending in the various circuits.

Cases that were not yet appealed but in which the parties plan an appeal will likely go to the DC Circuit in order to take advantage of the Noel Canning decision, although for now any new appeals are likely to be held in abeyance by the court, as it is doing with currently pending appeals.

Cases that are in compliance following an unappealed Board decision present a less clear picture.  Depending on the circumstances, it is possible that a party might cease the compliance process and either seek to appeal, or await action by the Board to enforce compliance, and rely the Noel Canning decision as a bar to such enforcement.

Cases that have closed on compliance – i.e., all compliance has been completed and cases are closed at the Board, would face a difficult time being resurrected.  Aside from that would be the general reluctance of employers to reopen a case that was behind them.

Of course, all of the foregoing is subject whether the Noel Canning holding survives intact after the expected review by the Supreme Court.  If it does survive and is confirmed by the Supreme Court, then all decisions rendered by the Board in the last year will be nullified for lack of quorum.