Almost one year after it granted review of Noel Canning, the U.S. Supreme Court, in a 5-4 vote, affirmed the D.C. Circuit Court’s decision that President Obama lacked the authority to appoint three National Labor Relations Board (“Board”) members during a three-day intra-session recess. The Circuit Court had held that the Recess Appointments Clause (“Clause”) of the Constitution, which allows the president to fill vacancies during recesses without the advice and consent of the Senate, only applies to the break between sessions (inter-session breaks) and not intermittent breaks throughout the session. The Circuit Court also held that the Clause only applied to vacancies that arose during the recess, not before. Interestingly, the U.S. Supreme Court disagreed on both points.
The Court was tasked with answering three questions:
- First, does “recess of the Senate” mean intersession or intra-session breaks? The Court held the Clause allows the president to fill vacancies during both intra-session and inter-session recesses.
- Second, does “vacancies that may happen” refer to vacancies that existed before the recess or only those arising during the recess? The Court held that recess-appointment authority refers to vacancies arising both before and during the recess.
- Third, can the president’s recess-appointment power be exercised during pro forma sessions where the Senate is officially convening every day but no one is actually attending the sessions? The Court held that three day intra-session breaks are too short to be the recess contemplated by the Founding Fathers in the Constitution. Further, in the history of the United States, no recess-appointment power had ever been exercised during an intra-session break of less than ten days. Therefore, the Court held President Obama’s three appointments were invalid.
Much of the 54-page Opinion penned by Justice Breyer focused on historical practices over the last two-hundred years in the area of recess-appointments and on various historical documents.
Politically, it is worth noting that the tactic of calling pro forma sessions every few days, created by Senate Democrats during President Bush’s presidency to block appointments, will work in the future to do just that.
For employers, it remains to be seen what will happen with all actions taken by the invalid Board from January 2012 to August 2013. This includes hundreds of cases, delegations of authority by the Board, and post-August 2013 cases relying on decisions made by the invalid Board. Already, the Board has ratified its administrative acts taken during this period. Furthermore, as the Board had a Democratic majority throughout this period and still does, we expect there will not be significant changes in the Board position but only time will confirm this. Practically, once these issues are handled, there will likely be no lasting impact on employers from this case.
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