In Noel Canning v. NLRB,
2013 U.S. App. LEXIS 1659 (D.C. Cir.
Jan. 25, 2013) [an enhanced version of this opinion is available to lexis.com subscribers],
the D.C. Circuit invalidated the decision and order of the National
Labor Relations Board ("Board") in Noel Canning, holding that
President Obama lacked constitutional authority for the three appointments to
the Board that he announced in early 2012 and that, consequently, the Board has
lacked quorum since at least the time of those appointments. In this Emerging
Issues Analysis, N. Peter Lareau, author of "NLRA: Law and Practice"
and numerous other books and articles in the field of labor law, summarizes the
court's decision and offers some thoughts on its implications for the future.
A three-member panel of the Board, composed of Members Hayes, Flynn, and Block,
issued its decision and order in Noel Canning on February 8, 2012. At
that time the Board purportedly consisted of five members. Chairman Pearce and
Member Hayes had been confirmed by the Senate on June 22, 2010. The other three
members held their positions pursuant to recess appointments made by President
Obama (without the advice and consent of the Senate) on January 4, 2012. Member
Block, filled a seat that became vacant on January 3, 2012, when former member
Craig Becker's recess appointment expired. Member Flynn, filled a seat that
became vacant on August 27, 2010, when former Member Schaumber's term expired.
Member Griffin, filled a seat that became vacant on August 27, 2011, when
former Chairman Liebman's term expired.
At the time of the three purported recess appointments, the Senate was operating
pursuant to a unanimous consent agreement, which provided that the Senate would
meet in pro forma sessions every three business days from December 20, 2011,
through January 23, 2012. The agreement stated that "no business [would
be] conducted" during those sessions. During the December 23 pro forma
session, the Senate overrode its prior agreement by unanimous consent and
passed a temporary extension to the payroll tax. During the January 3 pro forma
session, the Senate acted to convene the second session of the 112th Congress
and to fulfill its constitutional duty to meet on January 3.
The Court's Decision
The essential issue in the case revolves around the correct interpretation of
the "Recess Appointments Clause of the Constitution," which states:
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 court first held that the
meaning of "Recess" under the Recess Appointments Clause refers to:
"the period between sessions of the Senate when the Senate is by
definition not in session and therefore unavailable to receive and act upon
nominations from the President." In doing so, the court rejected the
Board's position - that the term referred to any break in the Senate's
business, including the 2012 intrasession break during President Obama made the
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