Recess Appointments to NLRB Are Unconstitutional, Invalidating Board Decisions

25 January 2013 Publication
Author(s): Christopher Ward

Legal News Alert: Labor & Employment

In a high-profile and much anticipated decision, the Court of Appeals for the D.C. Circuit has ruled today that President Obama’s purported NLRB “recess appointments” in January 2012 are constitutionally invalid. The immediate effect of this ruling is to deprive the Board of a quorum currently, and for the past year, as well as to throw into substantial doubt the validity of all decisions issued by the Board during that time. This includes those decisions we have recently written about regarding employee witness statements and “dues check-off” following expiration of a collective bargaining agreement, and all other decisions that reflect recent shifts in Board practice and long-standing precedent.

President Obama had argued that the U.S. Senate was in a “recess” when he made the appointments, such that he did not need Senate confirmation for the appointments as normally required by the U.S. Constitution. However, the Senate was holding periodic “pro forma” sessions every three days at the time of the appointments, which are typically a short formality in which no substantial business occurs. President Obama contended that the “pro forma” nature of the sessions did not make the Senate available to confirm his nominations, so he was free to make them unilaterally.

In the unanimous court opinion, the D.C. Circuit rejected the president’s arguments and looked at the substantial constitutional issue. It concluded that “recess appointments” may be made only during breaks between sessions of the U.S. Congress (also known as “intersession recesses”), rather than during breaks within a session of Congress (known as “intrasession recesses”). This ruling effectively overturns decades of practice by presidents over the past 90 years, which the court suggested has been an abuse of presidential power by stating that “[t]he dearth of intrasession appointments in the years and decades following the ratification of the Constitution speaks far more impressively than the history of recent presidential exercise of a supposed power to make such appointments.” The D.C. Circuit also decided that only those position vacancies that arise while the Senate is in intersession recess can be potentially filled by the president with a proper recess appointment.

The potential ramifications of this decision are substantial, and could go so far as to mean any vacancy to an executive branch position requiring Senate confirmation that opens while the Senate is in session could not be filled during any future Senate recess. In light of the significance of the decision, which potentially includes the invalidation of a full year’s worth of NLRB decisions, it is a virtual certainty that this decision will be appealed to the Supreme Court and that the high court will likely choose to review it. Until that happens, or until the Board has a quorum of members who the Senate has confirmed through traditional constitutional methods, the ability of the NLRB to issue future rulings of law under the National Labor Relations Act is in substantial doubt, and NLRB proceedings currently on review before the Board will likely be delayed. Additionally, if the D.C. Circuit’s decision remains good law following anticipated Supreme Court review, it will constitute a dramatic shift in the ability of the president to bypass the Senate and make appointments without that body’s advice and consent. This represents a significant tilting of power back to the Senate in this important “checks and balances” issue. The decision is Noel Canning v. National Labor Relations Board, No. 12-1115.

Our Labor & Employment attorneys will be watching this issue closely over the coming weeks and will issue further bulletins, including in our weekly Employment Law Update series, as the situation continues to develop.

Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our clients and our colleagues. If you have any questions about this update or would like to discuss this topic further, please contact your Foley attorney or the following:

Ryan N. Parsons
Milwaukee, Wisconsin

Christopher G. Ward
Chicago, Illinois

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