Corporate Accountability

Justices Agree to Decide Recess-Appointment Dispute

By Marcia Coyle


The U.S. Supreme Court on Monday agreed to decide whether President Barack Obama’s recess appointments to the National Labor Relations Board violated the Constitution.


The justices, as expected, granted review in National Labor Relations Board v. Noel Canning to determine the scope of the president’s power under the recess-appointments clause in the Constitution. The Obama administration and Noel Canning, a soft drink bottler and distributor in Yakima, Wash., had urged the court to take the case.


The justices’ grant of review was applauded immediately by groups on both sides of this constitutional battle over executive power.


“We warned last year that by appointing these members to the NLRB in such a controversial fashion, a cloud of uncertainty covered the agency and its work,” Thomas Donohue, president and chief executive of the U.S. Chamber of Commerce, said in a written statement. “We fought on behalf of our member in the D.C. Circuit and the court agreed with us.”


The chamber’s National Litigation Center represents Noel Canning along with Noel Francisco of Jones Day, who is counsel of record in the Supreme Court.


Supporting the government was the Constitutional Accountability Center, whose chief counsel, Elizabeth Wydra, said, “The court now has the opportunity to reverse a decision by the D.C. Circuit Court of Appeals, which grossly misinterpreted the text and structure of the Constitution—and ignored the last 220 years of American history—to reach a breathtakingly incorrect result that is already harming the nation. We look forward to the court’s recognizing that the same recess appointment power exercised by President George Washington and President Ronald Reagan also applies to the current president, and his successors.”


The administration is challenging a ruling in January by a panel of the U.S. Court of Appeals for the D.C. Circuit that invalidated three of the president’s recess appointments to the NLRB.


In the administration’s petition, Solicitor General Donald Verrilli Jr. argued that the appellate court decision threatens “a significant disruption” of the federal government’s operations and not only those of the NLRB, whose every order since January 4, 2012, may be contested.


“Moreover, those effects can also be expected to extend to a wider range of federal agencies and offices, because venue lies in the District of Columbia in virtually all civil actions seeking review of federal agency actions,” Verrilli wrote.


The high court case stems from the January 2012 appointments of Sharon Block, Terence Flynn and Richard Griffin to the NLRB. Under a unanimous consent order of the Senate, the second session of the 112th Congress began with a period of nearly three weeks, from January 3 to January 23, in which the Senate had provided that “no business [was to be] conducted,” and during which no senators were required to attend other than one senator who gaveled each pro forma session in and out.


“In view of the Senate’s explicit cessation of business for that extended period, the President determined that the Senate was in recess,” Verrilli wrote. “Accordingly, on January 4, 2012, the President invoked the Recess Appointments Clause and appointed three new members to fill the vacant seats on the Board.”


The board, which finally had a quorum because of the appointments, began issuing orders in its cases. One order went against Noel Canning, which was in a dispute with Teamsters Local 760. The NLRB had found that Noel Canning violated the National Labor Relations Act by refusing to reduce to writing and execute a collective-bargaining agreement reached with the union.


Noel Canning appealed the order to the D.C. Circuit. It contested not only the board’s order, but argued that the Senate was not in recess when the president made the three recess appointments and that the board therefore lacked a quorum when it issued its decision.


In the Supreme Court, the administration challenges the D.C. Circuit’s two reasons for invalidating the NLRB recess appointments.


The lower court held that the NLRB appointments were not made during “the Recess” as that term is used in the Constitution’s recess-appointments clause because “The Recess” is limited to intersession recesses, the period between one session of the Senate and the next, and does not include intrasession recesses.


The appellate panel, dividing 2-1, also held that the NLRB vacancies did not “happen” during “the Recess” of the Senate as required by the recess-appointments clause. The clause’s use of the phrase “that may happen” only applies to vacancies that arise during “the Recess,” not vacancies that happen to exist at the time the recess begins.


The administration asked the justices whether the president’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is limited to recesses between sessions; and whether the President’s recess-appointment power is limited to vacancies that arise during that recess.


Noel Canning, in its response to the government’s petition, asked the court to decide a third question as well: whether the president’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.


The justices in their Monday order also granted review on the question Noel Canning presented.


The key item in the court’s order granting review “was adding the question about whether the Senate’s pro forma sessions were sufficient to keep the Senate in session,” former NLRB general counsel Ronald Meisburg, now co-head of Proskauer Rose’s labor-management relations group, said in a written statement. “This signals that the Court will address the issue broadly, as urged by the respondent and supporting amicus.”


He added that, “The next big question is whether the D.C. Circuit or the Supreme Court will order the Board to stop issuing decisions. That group of cases will be argued in September in the D.C. Circuit.”


The case attracted a number of amicus briefs, including from Senate Republican leader Mitch McConnell of Kentucky and the Coalition for a Democratic Workplace.


In a separate case, the U.S. Court of Appeals for the Third Circuit also held that the NLRB appointments violated the recess-appointments clause. Other challenges to the NLRB appointments and to the recess appointment of Richard Cordray as head of the Consumer Financial Protection Bureau have been filed in federal courts.