Lareau on Noel Canning v. NLRB: D.C. Circuit: NLRB Has Lacked Constitutional Quorum Since the Beginning of 2012

Lareau on Noel Canning v. NLRB: D.C. Circuit: NLRB Has Lacked Constitutional Quorum Since the Beginning of 2012


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 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:

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 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 disputed appointments.

[Editorial note: The full version of this EIA has been discontinued]

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