D.C. Circuit Upholds Recess Appointment Under Noel Canning

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit today upheld an appointment to the NLRB on the first day of a 17-day intra-session recess of the Senate for a vacancy that existed before the recess. The case is an application of the Supreme Court's ruling last Term in Noel Canning--and it shows why all three parts of that ruling matter.

The case was a challenge to an NLRB decision based on lack of quorum, just like Noel Canning. In particular, the appellants, Stevens Creek Chrysler Jeep Dodge, argued that President Obama's appointment of Gary Becker to the Board violated the Recess Appointment Clause, because President Obama made the appointment to an already-existing vacancy on the first day of an intra-session recess.

The D.C. Circuit said that the recess appointment authority extends to intra-session recesses and to vacancies that already existed at the time of the recess, based on two of the holdings in Noel Canning. The court also said that the 17-day recess here was longer than the 10 days that the Supreme Court identified as enough to constitute a "recess."

Breaking a little new ground, however, the court also said that it didn't matter that Becker's appointment came on the first day of this 17-day recess. That's because, under historical examples that the Court relied upon in Noel Canning, the "lawfulness of a recess appointment depends on the ultimate length of the recess . . . not the number of days from the start of the recess to the appointment."

But don't count on this to shift the balance of power back to the President (by allowing him to recess appoint on the first day of any open-ended recess). Instead, it'll only mean that the Senate, if it wants to foil the use of the recess appointment power, won't have an open-ended recess; it'll define the recess and use pro forma sessions (as it did in the recess leading to Noel Canning).