Supreme Court cans presidential recess appointments to NLRB

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For the first time its 224-year history, the Supreme Court of the United States has issued a decision interpreting the Recess Appointments Clause of the Constitution (Art. II, Sec. 2, cl. 3).  Normally, the Senate must confirm nominees to executive positions, however the Appointments Clause gives the President the power “to fill up all Vacancies that may happen during the recess of the Senate.”  In National Labor Relations Board v. Noel Canning, the Court clarified the scope of the President’s recess appointment power.

The NLRB could not operate when its membership fell to two in January 2012.  At that time, the Senate was not in regular session, but was holding “pro forma” sessions every Tuesday and Friday.

The controversy in the case ultimately stemmed from three recess appointments President Obama made to the National Labor Relations Board (“NLRB”).  The NLRB consists of five members who serve five-year terms.  Additionally, each decision by the NLRB requires a quorum of at least three members in order to take effect.  Therefore, the NLRB could not operate when its membership fell to two in January 2012.  At that time, the Senate was not in regular session, but was holding “pro forma” sessions every Tuesday and Friday.  On January 4, 2012, during a three-day break between “pro forma” sessions, the President used the Appointments Clause to appoint Sharon Block, Terence Flynn, and Richard Griffin to the vacant positions.

Soon thereafter, the NLRB ruled against Noel Canning, a soda bottler and distributor, in a dispute with a labor union.  Noel Canning asked the Court of Appeals for the District of Columbia to review the NLRB order on the grounds that the President’s appointments to the NLRB during the three-day adjournment of the Senate were unlawful.  The Court of Appeals agreed with Noel Canning.  The government requested that the U.S. Supreme Court review the decision and it, too, agreed with Noel Canning, but on different grounds from the Court of Appeals.

The opinion delivered by Justice Breyer took into account the text of the Constitution as well as over 200 years of historical practice, holding that the Constitution presumptively allows the President to make recess appointments during “intra-session” recesses (breaks that occur within the two one-year sessions between congressional elections), as well as during “inter-session” recesses as long as the break is not less than ten days.  Further, the President can use the Recess Appointment Clause to fill any vacancies that exist at any time, regardless of whether such vacancies are created while the Senate is in recess or not.  Finally, the Senate can prevent the President from making recess appointments during its longer recesses by holding “pro forma” sessions every three days as long as it is able to conduct business.

 Estimates on the total number of decisions invalidated by the Court’s holding range from 300 to over 700.

Consequently, the NLRB lacked a quorum until three additional members were confirmed by the Senate on July 30, 2013.  This means that all cases decided by the NLRB between January 4, 2012, and July 30, 2013 are invalid and will have to be revisited.  Estimates on the total number of decisions invalidated by the Court’s holding range from 300 to over 700.  Some of NLRB’s more controversial decisions, several of which overruled past precedent, will get a second look. These include topics and decisions including the invalidation of termination for social media activity, finding an employer’s policy prohibiting employees from making “defamatory” statements about the company to be overly broad, prohibition on confidentiality in regard to workplace investigations, holding  arbitration agreements for employment claims unlawful because such an arrangement interfered with the employee’s right to take a claim to the NLRB, finding that vulgar and threatening statements on union newspapers in the workplace was protected activity that could not be disciplined, finding unlawful a rule prohibiting employees from remaining on employer’s premises fifteen minutes beyond their shift, holding an employer must bargain with a union before adopting a discretionary discipline policy regarding union employees, and holding employers cannot keep witness statements confidential from a requesting union.

The Supreme Court’s ruling creates a great deal of uncertainty regarding what will happen to many of the invalid decisions made by the NLRB during that time period, as well as other, valid decisions that used those as precedent.  Over 100 pending cases in the various appellate courts that were decided by the invalid appointees will likely have to be remanded back to the NLRB for review.  It is also unclear how the Court’s decision will affect other actions taken by the NLRB, such as Regional Director appointments made during that time, decisions made by those Regional appointees, and other delegations of power.

This is not the first time that the NLRB has been in such a position.  In 2010, the Supreme Court ruled in New Process Steel v. NLRB, that 554 decisions issued by a two-member NLRB were invalid.  The Court held the NLRB was not authorized to issue decisions without a quorum of three members.  Since that ruling, nearly all of the decisions issued by the two-member Board have been reviewed and closed.

 The purpose of the Recess Appointments Clause is to appoint an individual to a position when the proper process of nomination and confirmation is not available, but the position is too important to remain vacant.

It is expected that many of the decisions invalidated by Noel Canning will be affirmed, yet a serious political concern exists in that the Court’s decision may provide a tool for deadlock in the process of Senate confirmation to executive positions when the majority party in the Senate is not the same as that of the President.  If this were the case the Senate would only have hold “pro forma” sessions less than ten days apart and the President would not be able to use his appointment power.  This could potentially become a serious bargaining tool to an opposing majority in the Senate.

So what should the President do in such a situation?  The next vacancy on the NLRB will be this December, which will leave two Democrats and two Republicans on the Board.  If the Senate holds the President’s next nomination hostage, the progress on the backlog of cases that the NLRB is required to review could be seriously hindered.

The fallout created by the decision in Noel Canning raises the question of whether the Recess Appointments Clause of the Constitution is outdated.  As noted by the Court, it was the Framers’ intention that the primary mode of appointing individuals to key executive positions was through nomination by the President and confirmation by the Senate.  The purpose of the Recess Appointments Clause is to appoint an individual to a position when the proper process of nomination and confirmation is not available, but the position is too important to remain vacant.  The Clause was designed when it was not easy for member of Congress to travel far distances to convene.  Today travel is significantly easier and people are capable of making collective decisions across far distances without being physically present.  Though Noel Canning clarified the scope of the President’s power under the Recess Appointments Clause, its ultimate impact on American Labor and politics in the United States will remain uncertain for quite some time.