United States: Court Rules Recess Appointments To NLRB Unconstitutional, More Uncertainty To Follow

As we noted last month, the federal court of appeals in DC heard the first case on the constitutionality of the recess appointments to the NLRB.  Today, a three judge panel ruled unanimously that the appointments of Members Griffin, Block and Flynn were unconstitutional, meaning this court decided the NLRB has lacked a quorum since at least January 4, 2012.

The case is Noel Canning v. NLRB, No.12-115 (D.C. Cir. January 25, 2013).  Weighing in at a hefty 47 pages, it is a good mix of American history, Constitutional law and unabashed scepticism over the NLRB's arguments.  The decision prompted the NLRB Chairman to immediately issue a statement expressing that the "Board respectfully disagrees with today's decision and believes that the President's position in this matter will ultimately be upheld."  There are at least a dozen other cases challenging the recess appointments pending in various parts of the country so this will not be the last word.  Also, it is possible the Board may appeal the ruling to the United States Supreme Court and will continue on its course until that Court issues a ruling.


The three NLRB members received recess appointments on January 4, 2012.  Member Sharon Block filled a seat that became vacant on January 3, 2012 .  Member Terence Flynn (who has since resigned) filled a seat that became vacant on August 27, 2010.  Member Richard Griffin filled a seat that became vacant on August 27, 2011.

The Senate convened a new session on January 3, 2012 but was not actively conducting business.  The employer in the case, Noel Canning, asserted that since the Senate had convened a new session the recess appointments were invalid under the United States Constitution's Recess Appointments Clause, Article II, Section 2, Clause 3 which provides in part:

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.

The employer argued that the Senate was not in "the Recess" at the time of the appointments, and that the vacancies themselves did not "happen" during a recess.  The court of appeals ruled that the Constitution was violated with respect to both issues.

When is a Senate recess "the Recess"?

At the time of the appointments, the Senate was on a three day break, which is commonly referred to as an "intrasession" recess.  An intercession recess occurs between normal breaks in Senate sessions, usually of a longer term.  So the issue was whether an intracession recess was sufficient for the President to make the appointments to the NLRB.

The court of appeals reviewed the history of the Recess Appointments Clause, including an extensive review of the thought process behind the language, as well as referring to a 1755 dictionary definition of the word "the" (which is an "article noting a particular thing" for those interested).    The court concluded that "the Recess" referred to intersession recesses and not the generally shorter intrasession ones, noting that the framers themselves were very specific in the word choice.  The court also found it significant that only three Presidents in the first 150 years of the Republic had made intrasession appointments, none of which occurred in the first 80 years after the Constitution was adopted.

In concluding that "the Recess" referred only to intersession recesses, the court ruled:

[W]e hold that "the Recess" is limited to intersession recesses.  The Board conceded at oral argument that the appointments at issue were not made during the intersession recess:  the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued.  Considering the text, history and structure of the Constitution, these appointments were invalid from their inception.  Because the Board lacked a quorum of three members when it issues its decision in this case on February 8 2012, its decision must be vacated.

Slip op. at 30.  The court found that to interpret "the Recess" to include other breaks in Senate business would "giv[e] the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch or even when the Senate is in session and he is merely displeased with its inaction."

When a vacancy "happen[s] during "the Recess"

Two of the three judges on the panel went on to address the second issue raised by the employer, whether the vacancies being filled by the appointments "happen[ed] during the Recess."  The third judge issued a separate concurring opinion in which he stated it was unnecessary to reach this issue because the ruling on "the Recess" was sufficient to dispose of the matter.

The employer argued that the vacancy must have occurred, i.e., arisen, during an intersession recess.  The NLRB argued for a more expansive interpretation, contending that the President may fill vacancies that "happen to exist" during the recess.  The court undertook a close examination of this word as it appears in the Recess Appointments Clause, concluding:

The power of a written constitution lies in its words.  It is those words that were adopted by the people.  When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government.  In light of the extensive evidence that the original public meaning of 'happen' was 'arise,' we hold that the President may only make recess appointments to fill vacancies that arise during the recess.

There was no dispute that the appointments at issue did not arise during an intersession recess, and so the court ruled them invalid.

Impact of the decision

Subject to the outcome of any review by the Supreme Court, the decision in Noel Canning could have a broad impact.  Starting with the NLRB, any decision issued since January 4, 2012, that was appealed to the DC Circuit will now be subject to the law of the circuit as expressed in Noel Canning.  Already, though, the DC Circuit has begun issuing orders holding in abeyance the other cases pending there which raise the recess appointment issue.

Cases that were appealed to other circuits will likely be processed through decision in those circuits – at least the lead cases.  In Chairman Pearce's statement, he indicated that there were more than a dozen cases pending in the various circuits.

Cases that were not yet appealed but in which the parties plan an appeal will likely go to the DC Circuit in order to take advantage of the Noel Canning decision, although for now any new appeals are likely to be held in abeyance by the court, as it is doing with currently pending appeals.

Cases that are in compliance following an unappealed Board decision present a less clear picture.  Depending on the circumstances, it is possible that a party might cease the compliance process and either seek to appeal, or await action by the Board to enforce compliance, and rely the Noel Canning decision as a bar to such enforcement.

Cases that have closed on compliance – i.e., all compliance has been completed and cases are closed at the Board, would face a difficult time being resurrected.  Aside from that would be the general reluctance of employers to reopen a case that was behind them.

Of course, all of the foregoing is subject whether the Noel Canning holding survives intact after the expected review by the Supreme Court.  If it does survive and is confirmed by the Supreme Court, then all decisions rendered by the Board in the last year will be nullified for lack of quorum.


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
McLane Middleton, Professional Association
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
McLane Middleton, Professional Association
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions