Civil and Human Rights

Supreme Court Will Hear Recess Appointments 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 (NLRB) 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, Washington, had urged the court to take the case. The high court’s orders list is here.


The administration is challenging a ruling last 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. said 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 Jan. 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,” wrote Verrilli. “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, supported by the U.S. Chamber of Commerce, 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 to the board 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 inter-session recesses, the time period between one session of the Senate and the next, and does not include intra-session 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 Chamber of Commerce’s National Litigation Center is on the brief on behalf of Noel Canning, with Noel Francisco of Jones Day as counsel of record.


The justices also granted review on the question Noel Canning presented.


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


“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 said in a statement this morning. “We fought on behalf of our member in the D.C. Circuit and the Court agreed with us.”


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.

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