Supreme Court Agrees with AGC-Supported Coalition: 2012 Recess Appointments to NLRB Unconstitutional

The U.S. Supreme Court handed down a big victory to the AGC-supported Coalition for a Democratic Workplace (CDW) and U.S. Chamber of Commerce (Chamber) in a June 26 opinion invalidating President Obama’s January 2012 recess appointments to the National Labor Relations Board (NLRB or Board). The case arose after the NLRB issued a ruling in February 2012 that employer Noel Canning, a small bottling company in Washington state – unlawfully refused to reduce to writing a verbal collective bargaining agreement with a union.  The company appealed, claiming that the decision was invalid because it was issued while the five-member Board included three improperly appointed recess appointees and therefore lacked a quorum.  President Obama made the appointments on Wednesday, January 4, 2012, during a five-week period when the Senate was conducting only pro forma sessions every Tuesday and Friday.  Noel Canning argued that the three-day adjournment was not long enough to trigger the President’s recess appointment authority under the Recess Appointments Clause of the Constitution. CDW and the Chamber jointly filed a brief and presented oral argument supporting Noel Canning in the U.S. Court of Appeals for the D.C. Circuit.  In January 2013, the circuit court ruled in the company’s favor.  It found that a President’s recess appointment authority is limited to appointments made during an intersession recess of the Senate (i.e., a recess that occurs in the midst of a formal session rather than between sessions) and only to fill vacancies that arise during the recess in which the appointment is made.  Those conditions did not exist when the January 2012 recess appointments took place, rendering the appointments invalid.  The case was appealed to the Supreme Court, where the Chamber served as co-counsel to Noel Canning and CDW submitted a supportive amicus brief. The Supreme Court rejected the D.C. Circuit’s reasoning but accepted Noel Canning’s argument about the inadequacy of a three-day adjournment.  It held that the Recess Appointments Clause authorizes recess appointments during intrasession recesses but only if the recess is of “substantial length.”  In light of historical practice, the Court found that a recess of more than three days but less than ten days is presumptively too short to fall within the clause.  Furthermore, the Court held, “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.”  During the period in question, the Senate not only said it was in session and retained the power to conduct business, it actually did conduct business when it passed a bill by unanimous consent during one of its Friday pro forma sessions. The decision is significant in that it clarifies a President’s recess appointment authority, limiting it and shifting the balance of power in the direction of the Senate.  The impact is lessened, however, by the Senate’s adoption of new filibuster rules late last year, which reduced the need for a President to rely on recess appointments to make controversial appointments during times of a divided government.  The most immediate and practical impact of the decision will likely be a considerable slow-down of processing and backlog of cases at the Board, because it must now review the 700-plus cases it decided while the recess appointees were serving.  It could also slow down the Board’s rulemaking initiatives, most notably the “quickie election rule” which would expedite the election process in union representation cases.  The substantive outcome of those cases and rulemaking is not likely to change much, though.  Currently, the Board has five Senate-confirmed members, with the same political bent (a Democrat majority) as when the recess appointees were serving.  This properly constituted Board is free to effectively “rubber-stamp” those invalidated decisions, and is likely to do so. For more information, please contact Associate General Counsel Denise Gold at or (703) 837-5326.