Daily Archive: February 4, 2013

Feb 04

The D.C. Circuit Invalidates NLRB Recess Appointments

In its recent decision, Canning v. NLRB,[1] the Court of Appeals for the D.C. Circuit vacated a National Labor Relations Board (“NLRB”) order, ruling that the Board lacked a quorum because three of its members were invalidly appointed.[2]  Although President Obama attempted to appoint three of the Board’s members under the authority of the Recess Appointments Clause of the Constitution,[3] the D.C. Circuit concluded that the appointments were constitutionally invalid.[4]  The decision suggests that nearly two hundred years of presidential recess appointments may be invalid exercises of executive power.[5]

The first issue the court addressed pertained to the meaning of “recess” in the Recess Appointments Clause.  At the time President Obama made the three recess appointments to the NLRB, the Senate was holding pro forma sessions every three business days between December 20, 2011 and January 22, 2012.[6]  Despite an agreement stating that no business was to be conducted during those pro forma sessions, the Senate conducted business twice during that time period.[7]  The court concluded that only “the”[8] intersession recess of the Senate provides an appropriate opportunity for recess appointments, distinguishing other “adjournments” or “generic break[s] in proceedings” as insufficient to confer appointment authority.[9]  Because the court believed the Senate had only “broken for three days within an ongoing session,” it concluded that it was “not in ‘the Recess.’”[10]  The court cited separation of powers concerns and the original meaning of the term according to the Framers in support of its interpretation.[11]

Although the court acknowledged that its holding regarding the meaning of the term “Recess” would have been sufficient to vacate the Board’s order, it nevertheless continued to address a second constitutional issue:  the meaning of the word “happen” in the Recess Appointments Clause.[12]  On this issue, the court concluded that because the vacancies in Board membership did not “happen” during “the Recess,” the president lacked authority to make recess appointments.[13]  The court rejected three other circuits’ interpretation that the word “happen” in the Recess Appointments Clause includes all vacancies that “exist,” relying heavily on an originalist reading of the Constitution.[14]

This decision has already generated substantial criticism.[15]  Some have expressed concern that the court’s reading of the term “recess” suggests that the Senate can continue holding pro forma sessions to thwart presidential appointments indefinitely.[16]  Others are concerned that the decision threatens the status of hundreds of NLRB decisions.[17]

Despite the apparent force of the D.C. Circuit’s ruling, there are appeals pending in other circuits that will also address this conflict.[18]  Regardless of the outcomes of those decisions, however, it appears extremely likely that the Supreme Court will ultimately decide whether the recess appointments to the Board were valid.[19]  Because recess appointments can contribute to the smooth functioning of government, especially in times of political partisanship, the Supreme Court should carefully consider this issue and not read the Recess Appointments Clause unduly narrowly so as to completely impede use of the Recess Appointment power.


[1] Nos. 12–1115, 12–1153, 2013 WL 276024 (D.C. Cir. Jan. 25, 2013).

[2] See id. at *23.

[3] U.S. Const. Art. II, § 2, cl. 3 (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”).

[4] Canning, 2013 WL 276024, at *7.

[5] See Charlie Savage & Steven Greenhouse, Court Rejects Obama Move to Fill Posts, N.Y. Times, Jan. 25, 2013, at A1 (“Presidents have used recess appointments to fill vacancies that opened before a recess since the 1820s, and have made recess appointments during Senate breaks in the midst of sessions going back to 1867.”).

[6] See id. at *7.

[7] Id. (explaining that the Senate acted twice between December 20, 2011 and January 22, 2012:  once to pass a temporary extension to the payroll tax; once to fulfill its constitutional duty to meet on January 3).

[8] An extended discussion of the significance of the word “the” and its difference from “a” or “an” appears in the court’s opinion.  Id. at *8.

[9] Id. at *8-*9 & *16 (differentiating between “recesses” and “the Recess” and concluding that the latter only refers to the intersession recess, not to other adjournments).

[10] Id. at *9.

[11] Id. at *11-*12.

[12] Id. at *16 (quoting U.S. Const. Art. II, § 2, cl. 3) (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”).

[13] Id. at *23.

[14] Id. at *17 -*19 (quoting Evans v. Stephens, 387 F.3d 1220, 1224 (11th Cir. 2004); United States v. Woodley, 751 F.2d 1008, 1012-13 (9th Cir. 1985); United States v. Allocco, 305 F.2d 704, 709-15 (2d Cir. 1962)) (emphasizing that the other circuits’ analysis was misguided because they “did not focus their analyses on the original public meaning of the word ‘happen.’”).

[16] Id. (“[T]he opinion essentially said that the Senate need almost never be in recess; a handful of senators could create ‘pro-forma’ sessions that would trump any President’s ability to make appointments.”).

[17] See, e.g., Robert Barnes & Steven Mufson, Court Says Obama Exceeded Authority in Making Appointments, Jan. 25, 2013 (describing several labor leaders’ reactions to the decision).

[18] See id.

[19] See Toobin, supra note 12.