NLRB v. Noel Canning


When it came to one of the biggest separation of power cases in history, NLRB v. Noel Canning (2014) said President Obama’s appointments were invalid.

Now, here’s the facts of this case. Without boiling the facts down too much, the National Labor Relations Board (Petitioner) took legal action when the Noel Canning company (Defendant), a Pepsi bottler, violated the National Labor Relations Act. In response, Noel Canning lawyers argued NLRB members were appointed in an unconstitutional manner under the Recess Appointment Clause of the Constitution.

Here’s the issue before the Supreme Court: According to Article 2, Section 2, Clause 3, of the Constitution, was the Senate in recess on January 4, 2012, when the President Obama made three appointments to the NLRB? Also, can the President only fill vacancies during the official recess as outlined in the Constitution?

The Supreme Court made this holding: First, the Recess Appointment Clause works with inter/intra sessions breaks. Second, the vacancy can occur at anytime and not just during the recess of Congress. Finally, recess appointments made between three and ten days is too short; however, beyond this point, we don’t know.

In the majority, Justice Breyer laid the ten day rule of the recess appointments. He said, ‘We therefore conclude, in light of historical practice, that a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause.’ All Supreme Court Justices concurred.

In a concurrence which sounds like a dissent, Justice Scalia wanted a literal interpretation of the Constitution’s Recess Appointment Clause. For Justice Scalia, a recess session means the break between the first and second congressional session, which has a fixed term of two years. Justice Scalia did not mean intra session breaks within each session or the actual two year term. Certainly, Justic Scalia did not want to see countless intra session appointments. According to Justice Scalia, in order to qualify as a valid recess appointment, someone would need to die between the first and second sessions of the Senate meeting; otherwise, if someone did die while in session, Congress could vote on it right there. Here, Justice Scalia wanted a plain reading of the original Constitutional text, which seems like a strong argument.

In this case, everyone wondered if this was a valid recess appointment. Certainly, Democrats argued that Craig Becker was appointed in the correct manner. However, Republicans argued for a narrower interpretation of the Recess Appointment Clause; that being said, Republicans would block Democrat NLRB appointments no matter what and visa versa as in the past. In the end, NLRB business went nowhere because of congressional gridlock.

Moreover, people wondered if President Obama received bad legal advice from the Office Of Legal Council. Obama’s lawyers said pro forma sessions breaks don’t matter because they’re too small. According to the President’s lawyers, the Senate was on break for one month; therefore, Obama’s appointment were valid.

Nevertheless, President had leverage beyond his executive power. He just needed to his pen, phone, and Twitter, to accomplish his nominations. He needed to get on the the bully palpit and make things happen.

In the end, however, President Obama lost the battle with a 9 to 0 decision. The Supreme Court said three to ten days is too short of a break to make recess appointments when it comes to inter/intra congressional sessions. However, ultimately, President Obama did get his appointments because he worked out a deal with the Senate without making recess appointments.