Supreme Court Seems Skeptical of Validity of NLRB Recess Appointments

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By Michael J. Lotito and Ilyse Wolens Schuman

During Monday’s oral arguments of the closely watched case NLRB  v. Noel Canning, several members of the U.S. Supreme Court — including those considered the most liberal — took issue with the government’s legal justifications in support of President Obama’s Jan. 4, 2012 recess appointments to the National Labor Relations Board.

In January 2013, the U.S. Court of Appeals for the D.C. Circuit held in Noel Canning that the appointments of former members Sharon Block, Terence Flynn, and Richard Griffin to the Board while the Senate was holding pro forma sessions were unconstitutional.

While it is always difficult to read the tea leaves during a Supreme Court argument, it appears that there is a good chance that the Court will uphold Noel Canning, placing hundreds of  NLRB decisions in legal limbo.

Debating what is a Senate “recess”

Attorneys and justices spent the majority of the 90-minute argument trying to determine what constitutes a Senate recess, and what is the proper definition of “may happen” as used in the Constitution’s Recess Appointments Clause. This clause provides that:

[t]he 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.”

Solicitor General Donald B. Verrilli, Jr., arguing on behalf of the NLRB, began his argument by stating that Noel Canning’s interpretation of the Recess Appointments Clause “would repudiate the constitutional legitimacy of thousands of appointments by presidents going back to George Washington, and going forward, it would diminish presidential authority in a way that is flatly at odds with the constitutional structure the Framers established.”

He argued further that in the event Noel Canning is upheld, there are perhaps “many hundreds of board decisions that are under a cloud as a result of the D.C. Circuit’s ruling in this case. And so, the board will have a considerable amount of work to do … if the D.C. Circuit’s decisions were to be affirmed.”

Justice Elena Kagan asked Verrilli whether the use of the recess appointment power in modern times has been to deal “not with congressional absence, but with congressional intransigence, with a Congress that simply does not want to approve appointments that the President thinks ought to be approved?”

She noted further that “there’s no such thing truly as congressional absence anymore. And that makes me wonder whether we’re dealing here with what’s essentially a historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have.”

“A very … aggressive argument in favor of executive power”

Justice Samuel Alito picked up on this argument, and asked whether the rationale for allowing the president to make recess appointments when the Senate is being obstinate is “a very, very aggressive argument in favor of executive power now and it has nothing whatsoever to do with whether the Senate is in session or not.”

Chief Justice John Roberts echoed this sentiment, telling Verrilli that he was “latching on to the Recess Appointment Clause as a way to combat that intransigence rather than to deal with the happenstance that the Senate is not in session when a vacancy becomes open.”

Both Justices Kagan and Stephen Breyer made comments suggesting the issue is a political problem, not a constitutional problem, and the question of how to define what constitutes a legitimate recess is one for the Senate itself.

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Noel J. Francisco, arguing on behalf of Noel Canning, emphasized that the Constitution’s Advice and Consent Clause, which requires Senate approval of the president’s executive nominations, serves as a check on executive power, and that the government’s position in this case “would eviscerate that check, creating a unilateral appointment power available for every vacancy at virtually any time with advice and consent to be used only when convenient to the President.” He emphasized further that the “the Recess Appointments Clause  … is a contingent one that arises when the Senate triggers it.”

Arguing on behalf of Senate Republican Leader Mitch McConnell of Kentucky and others as amici (friend of the court) supporting Noel Canning, attorney Miguel Estrada raised the point that the president waited until the second session of the 112th Congress convened before making his appointments, even though the Senate had been holding pro forma sessions since the end of December.

High Court’s decision expected next spring

According to Estrada, the reason for making an appointment on Jan. 4 instead of the morning of Jan. 3 was to provide the appointees with an extra year in which to serve. “That shows that this is, indeed, the bottom of the slippery slope on the Recess Appointments Clause. It is a complete abuse of the process. It is being used for no other purpose than to overcome the Senate opposition or the Senate disinclination to agree with the president’s nominations.”

A decision on Noel Canning is not expected until later this spring. In the event the Court agrees that the recess appointments were invalid, the current National Labor Relations Board will have to revisit a number of decisions issued by the recess appointees.

The current Board – which consists of three Democratic nominees and two Republicans – would likely summarily approve many of those cases, although nothing is set in stone.

A transcript of the arguments can be found here.

This was originally published on Littler Mendelson’s Labor Relations Counsel blog© 2013 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.

Michael J. Lotito is the co-chair of Littler Mendelson's Workplace Policy Institute that provides advocacy services for clients, associations, and policy leaders on all workplace concerns, and a shareholder in the San Francisco office of the labor law firm. Contact him at lyse Wolens Schuman is a shareholder in Littler's Washington, D.C. office, and a member of the firm's Government Affairs practice. She works with employers in multiple industries, including trade associations, and leads the firm's Legislative and Regulatory practice. Contact her at


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