Thursday, June 26, 2014
The Supreme Court today affirmed the D.C. Circuit's opinion in Noel Canning (Breyer wrote the unanimous decision, with Scalia writing a concurrence, joined by Roberts, Thomas, and Alito). However, the Court did not limit the President's recess appointment power as much as the appellate court, which had defined "recess" as only a forma inter-session recess and an opening that occured during the recess (not surprisingly, given that it was supported by a strict originalist reading of the recess clause, the concurrence agreed with the D.C. Circuit opinion). Instead, relying on historical practice extending over 150 years, the Court held that both inter- and intra-session recess appointments are valid as long as the recess was of "sufficient length." That length, according to the Court, is presumptively at least ten days. Moreover, the vacancy doesn't have to occur during the recess. The Board ultimately loses in Noel Canning because the pro forma recess at issue was only three days.
In sum, this is about as good as the NLRB could expect. The pro forma recess was always iffy and the NLRB can reconsider the now-invalidated decisions, as it did after New Process Steel (although the earlier invalidated cases were easier because two, ideologically different, members had agreed on them). As for the future, there are a couple of practical considerations. First, the President's recess appointment power is now largely determined by the houses of Congress, which can both control when, or if, there is a sufficient recess for appointment purposes. However, that control isn't absolute; the Court emphasized that if the Senate simply says it is in session isn't enough. That statement is given great deference, but if it "is without the capacity to act, under its own rules, it is not in session even if it so declares." Second, control over recesses doesn't matter as much as it did when the Court granted cert. in Noel Canning. Under the Senate's new filibuster rules, the President's power to appoint depends less on whether there is a recess and more on which party controls the Senate. If it's the President's party, there is no need for a recess appoinment, assuing no defections that change the outcome. If it's the other party, then the appoint is dead without getting agreement between both sides. All in all, this was a very interesting constitutional case that will waste a lot of hours of work at the NLRB, but is unlikely to have a big impact on appointments in the future, as long as the current Senate rules remain--no matter what many reports have been saying.