NLRB v. Noel Canning (Amicus Brief)

September 23, 2013
Filibuster

In January 2012, President Obama filled three vacancies on the National Labor Relations Board (NLRB) through recess appointments, after a Senate minority had used the filibuster rule to block a Senate vote on the nominees. Under the Constitution’s Recess Appointments Clause, “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.” U.S. Const. art II, § 2, cl. 3. The three NLRB appointments preserved a quorum in the agency, allowing it to conduct business. During this period, from December 17, 2011 to and January 23, 2012, the Senate held pro forma sessions during which no business was conducted but the Senate was not adjourned for more than three days. The President asserted that the Senate was in recess despite these pro forma sessions, giving him authority to exercise his recess-appointment power during this period. 

Following these recess appointments, the NLRB issued a ruling that Noel Canning, a Pepsi bottling firm in Washington State, illegally refused to enter a collective bargaining agreement with the Teamsters. The company filed a Petition for Review in the United States Court of Appeals for the D.C. Circuit, challenging the validity of the “recess” appointments, and thus the Board’s quorum. A three-judge panel found that the recess appointments to the NLRB were unconstitutional, and therefore it “could not lawfully act, as it did not have a quorum.” While Noel Canning’s petition challenged the validity of using recess appointments during pro forma sessions of the Senate, the D.C. Circuit issued a more sweeping decision, ruling that the President can only exercise his recess appointment power during intersession recesses that occur between formal sessions of Congress, and not during intrasession recesses that occur within a session of Congress, despite long historical practice to the contrary. The Court further held that the President may only use recess appointments for vacancies that arose during the recess, and not for positions that became vacant while Congress was in session and remained vacant when a recess occurred. The National Labor Relations Board petitioned the U.S. Supreme Court for certiorari, and the Supreme Court agreed to take the case in June 2013.  

The Brennan Center, along with pro bono partner Paul, Weiss, Rifkin, Wharton & Garrison LLP and Professor Burt Neuborne at NYU School of Law, filed an amicus brief in support of the NLRB, urging reversal of the lower court decision. The brief argues that the D.C. Circuit’s unduly narrow interpretation of the Recess Appointments Clause upsets the delicate balance of powers between the executive branch and the Senate in the appointments process, undermining the President’s role in ensuring that the laws are faithfully executed. Moreover, the Recess Appointments Clause’s check against Senate abuse of the advice and consent process is particularly important now, when partisan obstruction tactics, including the filibuster, have become commonplace. By eviscerating the Recess Appointments Clause, the D.C. Circuit decision would enable the Senate, or a Senate minority, to use its advice and consent power as an obstruction tool to prevent a democratically-elected President from governing effectively.

The Court of Appeals opinion is available here.

Supreme Court Documents