Last Friday, the U.S. Court of Appeals for the DC Circuit issued
its decision in the case of Noel Canning vs. National Labor
Relations Board. The three judge panel unanimously held that
the NLRB did not have the legal ability to issue rulings and orders
because it lacked a duly appointed quorum of at least three
members. Having failed to obtain Senate confirmation of three
appointees to fill vacancies on the NLRB, President Obama by-passed
the Senate and appointed his nominees to the Labor Relations Board
under the authority granted by the "Recess Appointments"
clause of the Constitution. That clause empowers the president 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."
On January 4, 2012, the date President Obama filled these three
vacancies on the NLRB, the Senate was operating under a unanimous
consent agreement providing that the Senate would meet in pro
forma sessions every three business days from December 20,
2011 through January 23, 2012.
The issue before the Court was whether the Recess referred to in
the Recess Appointments clause applied to intersession
recesses-that is periods of time between Sessions of the Senate-or
intrasession breaks in Senate business taking place during
a Session. After analyzing the text of the Constitution, the
history of recess appointments, and relevant case authority, the
Court concluded that the Recess referred to breaks between sessions
and not periods of time during sessions when the Senate was not
convened for business.
The Administration urged a different interpretation on the
Court. It argued that the President had discretion to determine for
himself whether the Senate was in recess. The DOJ Office of Legal
Counsel wrote: "[T]he President therefore has discretion to
conclude that the Senate is unavailable to perform its
advise-and-consent function and to exercise his power to make
To this argument, the Court responded with four words:
"This will not do." This is a major blow for
Constitutional order and the rule of law.
The Constitution is premised upon a separation of power between
three coordinate branches of the federal government. To allow the
president to decide when the Senate was in recess would, in the
Court's words, "demolish the checks and balances inherent
in the advice-and-consent requirement, giving 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. This
cannot be the law."
The Noel Canning decision will have ramifications
beyond the narrow dispute over whether Noel Canning was guilty of
an unfair labor practice. All of the scores of decisions and rules
issued by the NLRB during the time its quorum consisted of unlawful
recess appointees are subject to challenge. Moreover, the actions
of the Consumer Financial Protection Bureau are likewise subject to
challenge since the CFPB's Director, Richard Corday was also a
recess appointee when the Senate was not in recess.