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When is a Congressional Recess Not a Recess? U.S. Supreme Court Rebukes President’s Packing National Labor Relations Board

Labor and Employment Alert | June 30, 2014
By: John K. Baker and Stephanie A. Kobal

In previous Client Alerts, we have discussed the ongoing dispute between the Board and employers regarding President Obama’s recess appointments of Board members to decide critical cases that would shape the way employers function vis-à-vis their most valuable resource - their employees. On June 26, 2014, the U.S. Supreme Court declared that the President lacked the authority to make the 2012 appointments. The appointments were challenged under Article II, Section 2, Clause 3 of the U.S. Constitution (known as the “Recess Appointments Clause”), which provides that the “President shall have  power to fill up all Vacancies that may happen during the Recess of the Senate...”  Noel Canning, the employer challenging the Board’s ability to act without at least a quorum, contended that the appointments were invalid because the Senate was not in recess at the time of the appointments and any decision the Board made with these members were invalid.  

In NLRB v. Noel Canning et al., the Court examined the Constitutional meaning of “Recess.”  The Court found that the phrase “Recess of the Senate” applies to both breaks in formal sessions of the Senate and breaks in the midst of a formal session of the Senate, so long as the break is of a substantial length.  The Court held that, in light of historical practice, a break must be at least ten (10) days in length to constitute a recess for purposes of the Recess Appointments Clause.  Further, the Court confirmed that the Senate is in session when it states that it is, so long as the Senate retains the capacity to transact business.  With this in mind, the Court held that the Senate was in session, and not in recess, when the President made the ‘recess appointments’ to the Board in 2012.  Accordingly, the President lacked the authority to make the appointments.

The opinion of the Court, authored by Justice Breyer, also held that the phrase “vacancies” applies both to those vacancies that arise during a recess and those that arise before a recess begins, even though the Constitution clearly states “during the Recess.” Rather than interpreting the language of the Constitution, Justice Breyer analyzed the entire history of the timing of all recess appointments made by every President.  He concluded that an appointment can be made during a recess even if the vacancy existed prior to the recess rather than during the recess. 

Not surprisingly, the Board was quick to acknowledge that the it currently has a full contingent of five Senate-confirmed members.  The fact that the Board is comprised of members confirmed by the Senate does not alter the impact of this ruling on the validity of the Board’s orders entered by the 2012 appointees.  Per its released statement, the Board is “committed to resolving any cases affected by [the Court’s] decision as expeditiously as possible.”  The exact manner in which the Board will “resolve” the hundreds of rulings potentially affected by the Court’s decision is unclear.

We will continue to provide updates of further developments in this area.  Please contact John K. Baker (610.782.4913, or Stephanie A. Kobal (610.782.4942, or any member of our Labor and Employment Group for further assistance.

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
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