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Court Case

NLRB v. Noel Canning (Amicus Brief)

The Supreme Court unanimously invalidated three appointments to the NLRB because they did not meet the requirements of the Recess Appointments Clause. However, the Court divided by a vote of 5-4 on what types of recess appointments are permissible.

Published: June 26, 2014

On June 26, 2014, the U.S Supreme Court issued its ruling in NLRB v. Noel Canning. The Court unanimously invalidated three appointments to the NLRB because they did not meet the requirements of the Recess Appointments Clause.

However, the Court divided by a vote of 5-4 on what types of recess appointments are permissible. The majority held in its controlling opinion that recess appointments can be made during any recess of at least ten days, regardless of whether the recess is an intersession recess or an intrasession recess and regardless of when the vacancies being filled arose. The Court invalidated the NLRB appointments at issue in the case, however, because the Senate had held “pro forma” sessions that broke a lengthy recess into smaller ones that were too short for the recess appointment power to apply. The concurring justices would have only permitted recess appointments during intersession recesses and only when the vacancies arose during the same recess in which they would be filled.

The Controlling Opinion

Justice Breyer: “The Recess Appointments Clause responds to a structural difference between the Executive and Legislative Branches: The Executive Branch is perpetually in operation, while the Legislature only acts in intervals separated by recesses. The purpose of the Clause is to allow the Executive to continue operating while the Senate is unavailable. We believe that the Clause’s text, standing alone, is ambiguous. It does not resolve whether the President may make appointments during intra-session recesses, or whether he may fill pre-recess vacancies. But the broader reading better serves the Clause’s structural function. Moreover, that broader reading is reinforced by centuries of history, which we are hesitant to disturb. We thus hold that the Constitution empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length.”

The Concurring Opinion

Justice Scalia: “To prevent the President’s recess-appointment power from nullifying the Senate’s role in the appointment process, the Constitution cabins that power in two significant ways. First, it may be exercised only in ‘the Recess of the Senate,’ that is, the intermission between two formal legislative sessions. Second, it may be used to fill only those vacancies that ‘happen during the Recess,’ that is, offices that become vacant during that intermission. Both conditions are clear from the Constitution’s text and structure, and both were well understood at the founding.”

Case Background

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, Rifkind, 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. The Brennan Center's amicus brief is available here.

Read the Brennan Center's analysis: SCOTUS and the Future of the Recess Appointment Power.

U.S. Supreme Court Opinions

Merits Briefs

Amicus Briefs Supporting the Petitioner NLRB

Amicus Briefs Supporting the Respondent Noel Canning