United States: D.C. Circuit Rules NLRB Recess Appointments Unconstitutional

The ruling places in substantial doubt the validity of any NLRB decision or action since January 4, 2012, and calls into question the scope of the president's recess appointment power more generally.

On January 25, in Noel Canning v. National Labor Relations Board, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously ruled that President Barack Obama's three recess appointments to the National Labor Relations Board (NLRB or Board) in January 2012 were unconstitutional.1 This decision has potentially far-reaching effects as it calls into question the validity of NLRB decisions since the appointments, as well as the president's recess appointment power generally.


On January 4, 2012, President Obama made three controversial recess appointments to the NLRB. Those appointments were made one day after the expiration of Member Craig Becker's term, which left the five-seat Board with only two confirmed members—Mark Pearce and Brian Hayes—and a lack of quorum to issue decisions. In an effort to avoid effectively shuttering the agency during what likely would have been an extended Senate confirmation process for new appointees, President Obama appointed Sharon Block, Richard Griffin, and Terence Flynn to the Board. President Obama did so under the auspices of his recess appointment power contained in Article II, Section 2 of the U.S. Constitution, referred to as the Recess Appointments Clause.

The D.C. Circuit's decision in Noel Canning involved review of a Board decision against employer Noel Canning in a relatively routine unfair labor practice case. A three-member panel consisting of Members Hayes, Flynn, and Block issued the decision on February 8, 2012. In its petition for review of the Board's decision, Noel Canning argued to the D.C. Circuit that the Board at the time only had two validly appointed members. In effect, Noel Canning argued that the Board lacked a quorum to issue decisions and that the adverse decision against it was invalid. The D.C. Circuit agreed.

D.C. Circuit Opinion

In a lengthy opinion, the D.C. Circuit flatly rejected the Board's and the Obama administration's claims that the Senate was in recess on January 4, 2012, for purposes of the Recess Appointments Clause. The clause provides as follows:

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 court first held that the term "the Recess" refers only to intersession breaks between formal sessions of Congress and that it does not refer to mere intrasession breaks or adjournments. The court explained that "[a]s a matter of cold, unadorned logic, it makes no sense to adopt the Board's proposition that when the Framers said 'the Recess,' what they really meant was 'a recess.'2 This ruling effectively limits the president's recess appointment power to just two breaks—and, in some cases, one or no break at all—during each two-year period that a Congress holds power. As such, President Obama's appointments of Members Block, Griffin, and Flynn at a time other than an intersession break alone rendered the appointments invalid.

The court was not persuaded by the argument that President Obama's "recess" appointments were consistent with those of many presidents in recent history. The court chose instead to rely on interpretation and practice dating back to the Framers, noting that no president attempted to make an intrasession recess appointment in the first 80 years after the Constitution was ratified. The court also was not persuaded by the suggestion that the president might have the ability to decide if and when the Senate is "in recess." According to the court, this "would eviscerate the Constitution's separation of powers . . . [and it] would demolish the checks and balances inherent in the advice-and-consent requirement[.]"3These three recess appointments to the NLRB were particularly controversial because, unlike recess appointments of other presidents, these were made at a time when the Senate itself was holding pro forma sessions every three days. Although this fact was not central to the court's decision, it provides important context to the separation of powers argument.

The court then went on to consider when a vacancy must "happen" for purposes of the Recess Appointments Clause. The court concluded that the clause only covers vacancies that actually arise during the recess, not to vacancies that "happen to exist" when the recess begins. This interpretation further restrains the president's recess appointment powers, as recess appointments only can be made during a period that may be rather short or nonexistent during some two-year congressional sessions. The court again explained that an alternative interpretation would allow the president to hold his nominations until a recess and then circumvent the formal confirmation process. The court held that President Obama's January 2012 Board appointments were invalid on this basis as well, given that none of the vacancies in question arose during an intersession recess.


In a statement issued shortly after the D.C. Circuit's ruling, NLRB Chairman Pearce indicated that the Board would continue to function and issue decisions. Chairman Pearce also expressed the current Board's disagreement with the decision and pointed out that the decision only applies to one specific case.4 The D.C. Circuit's decision nonetheless is far reaching and critically important. This is particularly true for those employers recently or currently involved in Board proceedings.

The Noel Canning decision provides a roadmap for challenging the validity of recent Board decisions in the D.C. Circuit. Unless the substantive law of the case is more favorable elsewhere, the D.C. Circuit will become the presumptive forum of choice for challenging Board decisions. This could include Board decisions during the recent term of Member Becker, who also was a recess appointee. In addition, the Noel Canning decision may provide another basis for challenging the NLRB election rules that were issued while Member Becker was on the Board. Those rules currently are being challenged on separate quorum-related grounds.

We expect the issue of the president's recess appointment power to make its way to the U.S. Supreme Court, either in the Noel Canning case or related litigation. This is particularly true given that the D.C. Circuit's decision has implications beyond the NLRB. President Obama also invoked his recess appointment power to appoint Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) on January 4, 2012. As the CFPB's first director, Cordray was empowered by the Dodd-Frank Wall Street Reform and Consumer Protection Act to prescribe rules and issue orders and guidance necessary to carry out the purposes of the federal consumer financial laws. The agency has issued approximately 28 regulations since his appointment. Two of the regulations, both with January 2014 effective dates, are expected to dramatically affect the mortgage lending and mortgage servicing businesses. With the scope of the president's appointment power now unclear, however, CFPB regulations issued under Director Cordray almost certainly will be called into question.


1 Noel Canning v. Nat'l Labor Relations Bd., No. 12-1115 (D.C. Cir. Jan. 25, 2012), available here

2 Id. at 17.

3 Id. at 25-26.

4 View Chairman Pearce's statement here.

Copyright 2013. Morgan, Lewis & Bockius LLP. All Rights Reserved.

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

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.

In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.