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In a unanimous decision, the U.S. Supreme Court struck down three of President Barack Obama’s recess appointments to the National Labor Relations Board (NLRB). The high court, ruling June 26, 2014, said that the appointments were unconstitutional because they were made during a three-day recess in pro forma Senate sessions, and “three days is too short a time to bring a recess within the scope of the [U.S. Constitution’s Recess Appointments] Clause.” (National Labor Relations Board v. Noel Canning, No. 12-1281).
This means that “every decision that was made in which any of those three appointees were the quorum-making vote is invalid,” according to Brian Hayes, a former NLRB member who served on the board with the three members whose appointments were at issue. “This creates confusion for employers. Many of these decisions were controversial, groundbreaking, reversing precedent,” said Hayes, who is currently an attorney with Ogletree Deakins in Washington, D.C.
Testifying before a U.S. House of Representatives subcommittee on June 14, 2014, Roger King, a member of the Jones Day law firm’s Labor & Employment Practice Group who also serves as senior labor and employment counsel for the Human Resource Policy Association, spoke about the implications if the high court were to strike down the appointments. He noted the following:
• There were more than 700 reported and unreported decisions issued by the challenged recess appointees during the time period from January 2012 until August 2013.
• Enforcement actions by at least 10 regional directors of the NLRB who were approved by the 2012-13 recess appointee board also could be subject to being set aside.
• Delegations of authority from the 2012-13 challenged recess appointee board to its acting general counsel, especially in the injunction area, may also be subject to litigation attack.
• Approximately 4,000 reported and unreported decisions of potentially quorumless boards over the last 20 years, as well as actions of regional directors approved by such boards, may be invalid.
• There are 144 challenges to decisions of the president’s January 2012 challenged recess appointees pending in the various federal circuit courts of appeal with at least one case challenge pending in each federal circuit court. All of those cases may be returned to the board for reconsideration.
Interpreting the Recess Appointments Clause
Noel Canning, a Pepsi-Cola distributor, asked the D.C. Circuit to set aside an NLRB order, claiming that the board lacked a quorum because three of the five board members had been invalidly appointed. The nominations of the three members in question were pending in the Senate when it passed a Dec. 17, 2011, resolution providing for a series of pro forma sessions, with “no business transacted,” every Tuesday and Friday through Jan. 20, 2012.
Invoking the Recess Appointments Clause, which gives the president the power “to fill up all vacancies that may happen during the recess of the Senate,” the president appointed the three members in question between the Jan. 3 and Jan. 6 pro forma sessions. Noel Canning argued primarily that the appointments were invalid because the three-day adjournment between those two sessions was not long enough to trigger the Recess Appointments Clause. The appellate court found the appointments unconstitutional, and the high court agreed.
Writing for the court, Justice Stephen Breyer, joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonya Sotomayor and Elena Kagan, first concluded that the phrase “the recess of the Senate” in the Recess Clause applies to both intersession recess (breaks between formal sessions of the Senate) and intra-session recesses (breaks in the middle of a formal session) of substantial length.
Further, for purposes of the Recess Appointments 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. “Under the standard set forth here,” Breyer wrote, “the Senate was in session during the pro forma sessions at issue. It said it was in session, and Senate rules make clear that the Senate retained the power to conduct business.”
But, Breyer continued, although the Clause does not say how long a recess must be, even the federal government itself conceded that a three-day recess would be too short.
The remaining four justices—Chief Justice John Roberts Jr., and Justices Clarence Thomas, Antonin Scalia and Samuel Alito Jr.—agreed with the judgment of the court striking down the appointments, but would have gone even further than the majority, ruling that the president’s recess-appointment power only occurs during breaks between usually year-long sessions of the Senate.
The Society for Human Resource Management submitted an amicus brief in this case supporting Noel Canning, and arguing that the three recess appointments were unconstitutional.
Resulting Uncertainty Should be Addressed
“The regulated community may not like regulation, but what it likes less is uncertainty, and that is what we have now,” Hayes said. “I would hope that the board makes resolving the problems that have come about because of the invalidity of these appointments their first order of business. They need to address this before they do anything else,” he concluded.
Joanne Deschenaux, J.D., is SHRM’s senior legal editor.
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