Court Rules Recess Appointments To NLRB Unconstitutional, More Uncertainty To Follow

As we noted last month, the federal court of appeals in DC heard the first case on the constitutionality of the recess appointments to the NLRB. Today, a three judge panel ruled unanimously that the appointments of Members Griffin, Block and Flynn were unconstitutional, meaning this court decided the NLRB has lacked a quorum since at least January 4, 2012.

The case is Noel Canning v. NLRB, No.12-115 (D.C. Cir. January 25, 2013). Weighing in at a hefty 47 pages, it is a good mix of American history, Constitutional law and unabashed scepticism over the NLRB's arguments. The decision prompted the NLRB Chairman to immediately issue a statement expressing that the "Board respectfully disagrees with today's decision and believes that the President's position in this matter will ultimately be upheld." There are at least a dozen other cases challenging the recess appointments pending in various parts of the country so this will not be the last word. Also, it is possible the Board may appeal the ruling to the United States Supreme Court and will continue on its course until that Court issues a ruling.

Background

The three NLRB members received recess appointments on January 4, 2012. Member Sharon Block filled a seat that became vacant on January 3, 2012 . Member Terence Flynn (who has since resigned) filled a seat that became vacant on August 27, 2010. Member Richard Griffin filled a seat that became vacant on August 27, 2011.

The Senate convened a new session on January 3, 2012 but was not actively conducting business. The employer in the case, Noel Canning, asserted that since the Senate had convened a new session the recess appointments were invalid under the United States Constitution's Recess Appointments Clause, Article II, Section 2, Clause 3 which provides in part:

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.

The employer argued that the Senate was not in "the Recess" at the time of the appointments, and that the vacancies themselves did not "happen" during a recess. The court of appeals ruled that the Constitution was violated with respect to both issues.

When is a Senate recess "the Recess"?

At the time of the appointments, the Senate was on a three day break, which is commonly referred to as an "intrasession" recess. An intercession recess occurs between normal breaks in Senate sessions, usually of a...