January 25, 2013
D.C. Circuit Strikes President Obama's Recess Appointments to NLRB, Tees Case for Supreme Court
The D.C. Circuit ruled today in Noel Canning v. NLRB that President Obama's three recess appointments to the NLRB last year, on January 4, 2012, were invalid under the Recess Appointments Clause, and that the NLRB therefore lacked a quorum to issue its decision finding that the petitioner violated the NLRA. The ruling tees the issue up for likely Supreme Court review.
We've previously posted on President Obama's recess appointments and court challenges here, here, and here. Here's our post on the OLC memo concluding that President Obama had authority to make the appointments.
The case arose after President Obama appointed three people to the NLRB on January 4, 2012, when the Senate was operating under a unanimous consent agreement that provided that it would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012. The pro forma sessions are designed to keep the body in business so that it's not "in recess" for Recess Appointment Clause purposes, thus thwarting the President's ability to make unilateral recess appointments. (During these sessions, the Senate actually engaged in some business, including passing a temporary extension to the payroll tax and convening the second session of the 112th Congress.) The Senate did not adjourn sine die before the end of the first session of the 112th Congress, and thus according to the court the Senate did not have an intersession recess between the first and second sessions of the 112th Congress. Instead, "the First Session of the 112th Congress expired simultaneously with the beginning of the Second Session." Op. at 42.
The petitioner challenged the appointments after the NLRB, with President Obama's appointees, issued a decision concluding that he violated the NLRA. The petitioner claimed that the appointments were invalid under the Recess Appointments Clause, that the NLRB wouldn't have had a quorum without those appointees, and without a quorum it didn't have any authority to issue its decision against him.
The D.C. Circuit agreed. It ruled that the Recess Appointments Clause only authorizes intersession appointments, not intrasession appointments, and that it only authorizes appointments for vacancies that happened during the intersession recess (and not that merely existed during the intersession recess).
As to the intersession requirement, the Court relied principally on the plain text of the Clause:
[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.
The court explained that the phrase "the Recess" must refer to the intersession recess, because of the use of the definite article "the." If the Clause were to cover intrasession recesses, in contrast, the text would have used the phrase "a recess" or "recesses." The word "the" here identifies "recess" only as the intersession recess. The court also looked to history, structure, other text, state constitutionalism, and other sources to buttress its textual analysis. It said that the OLC's position would allow the executive to define the scope of his or her own recess appointment power and to make a recess appointment anytime the Senate broke for lunch. "This cannot be the law." Op. at 26.
This part of the ruling puts the D.C. Circuit at odds with the Eleventh Circuit and its ruling in Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004).
As to when the vacancy happens, the D.C. Circuit also relied principally on text, but looked to other sources, too. The court said that "happen" must mean that the vacancy arises during the recess, not that it merely exists during the recess.
This part of the ruling puts the D.C. Circuit at odds with the Second, Ninth, and Eleventh Circuits. It was also unnecessary: as Judge Griffith points out in concurrence, the court's ruling on the intrasession appointment was sufficient to vacate the NLRB's decision, without considering when the vacancies happened.
Because of the importance of the issues and the circuit splits, look for this case to go to the Supreme Court.
There's just one potential hiccup: It's not obvious that the courts have jurisdiction to hear the constitutional claims. The NLRA says that courts can consider appeals from NLRB judgments only when parties raised the issues at the NLRB, unless there are "extraordinary circumstances." The parties didn't raise the appointments challenges at the NLRB, but the court said that there were "extraordinary circumstances": the appointments objections "go to the very power of the Board to act and implicate fundamental separation of powers concerns." Op. at 11.
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