Tag Archive: recess appointments

Jul 22

David L. Gregory on NLRB

In an article titled “Vacancies and Partisan Fighting Put Labor Relations Agency in Legal Limbo” written by Mark Landler and Steven Greenhouse and published in The New York Times on July 15, 2013, Professor Gregory offers context for the situation which has arisen in the National Labor Relations Board.

The NLRB has been functioning without a quorum of members (a full slate is five members) and President Obama’s NLRB recess appointments have been the subject of an acrimonious court battle set to go before the Supreme Court next term.

Experts, like Professor Gregory, say that these issues have cast doubt upon the rulings of the NLRB and without a clear sense of direction in solving labor disputes.

Here is an excerpt from the article:

“The situation we’re seeing now is really unprecedented,” said David L. Gregory, a professor of labor law at St. John’s University. “There was a period of chronic vacancies that was as much the fault of the Democrats as the Republicans. But we really haven’t seen a showdown like this in modern history.” The White House reiterated Monday that Republicans were “needlessly and systematically” obstructing the president’s nominees, arguing that he had put forward a full bipartisan set of candidates in April.

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Mar 25

NLRB Appeals to Supreme Court

 

The National Labor Relations Board (NLRB) announced on March 12, 2013, that it had decided it will not seek en banc rehearing of the Noel Canning v. NLRB decision. (Noel Canning Div. of Noel Corp., D.C. Cir., No. 12-1115, action announced 3/12/13).  In that decision, the U.S. Court of Appeals for the D.C. Circuit ruled that the January 4, 2012, recess appointments of three members to the Board were invalid.  After consultation with the Justice Department, the Board announced its intention to file a petition for certiorari with the Supreme Court to review the Noel Canning decision.

The Noel Canning court held that President Obama’s appointment of three members to the Board did not comply with the requirements of the Recess Appointments Clause.  It has been widely observed that the D.C. Circuit’s decision calls into question hundreds of decisions rendered by the National Labor Relations Board over the past year.  If the Supreme Court affirms the lower court’s decision, all of these decisions would appear to be invalid.  NLRB Chairman Mark Gaston Pearce vowed to fight the court’s decision shortly after the D.C. Circuit released its opinion. Chairman Pearce issued a statement that the NLRB “believes that the President’s position in the matter will ultimately be upheld.”  In the interim, Chairman Pearce announced that the Board will continue to fulfill its statutory mandate and issue decisions.  Although the Board’s decision has met with a fair amount of criticism, Chairman Pearce appears unfazed by calls that the Board should abide by the Circuit’s decision.

The Labor Board has until April 25th to file its petition for certiorari.

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.