Court Reads Broad Appointment Authority, but Strikes NLRB Appointees

Steven D. Schwinn, John Marshall Law School

The Supreme Court today in NLRB v. Noel Canning gave a broad reading to the Recess Appointment Clause, but nevertheless struck President Obama's recess appointments to the NLRB, ruling that the Senate was in session.  The ruling means that the NLRB lacked a quorum when it issued an order to Noel Canning, a Pepsi distributor, and that order is invalid.  It's not clear yet how many other offices may be affected by the ruling.  Our oral argument review (with a link to our preview) is here.

The ruling hands a defeat to President Obama in the short run (on the NLRB appointments), and, despite the broad reading of the clause, may hinder presidents in the future.  That's becuase the Court said that the Senate is in session when it says it is, provided that it retains power to act, as it did here.  That means that even when the Senate meets in pro forma sessions, as here, presidential appointments have to follow the usual course and get Senate confirmation (instead of dodging Senate confirmation through the recess appointment mechanism).  As a result, the Senate can frustrate a president's ability to recess-appoint a nominee by going into pro forma sessions (again, with the ability to act), thus forcing a president to gain Senate confirmation (which, as we've seen, may be a difficult or impossible task).

The Court said that any session more than 3 days but shorter than 10 days is presumptively too short to constitute a recess of the Senate and thus to allow a recess appointment.  And again: the Senate gets to say, presumptively, when it's in recess.

As to a recess over 3 days: the Adjournment Clause (Art. I, Sec. 5) allows the House to prevent a recess of the Senate.  This gives even the House the power to block a recess--and recess appointments--for any period over 3 days.  That means that the House could block a recess appointment by denying the Senate consent to recess.

Because the Senate was in session when President Obama made the NLRB appointments--because it said it was, and because it retained power to act, even if it was in pro forma sessions--the Court ruled them invalid.

At the same time, the Court handed the executive branch a victory on its broader reading of the Recess Appointments Clause.  Thus the Court ruled that a "recess" includes both inter-session recesses and intra-session recesses.  It also ruled that "vacancies that may happen during the recess of the Senate" include vacancies that first come into existence during a recess and vacancies that initially occurred before a recess but continued during the recess.

The judgment striking the NLRB appointees was unanimous.  But Justice Scalia wrote a concurrence, joined by Chief Justice Roberts and Justices Thomas and Alito.  Justice Scalia wrote that the majority went too far in reading a broader Recess Appointment Clause and relied too heavily on prior presidential practice:

To reach [its] result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best.  The majority's insistence on deferring to the Executive's untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a dimunition of this Court's role in controversies involving the separation of powers and the structure of government.