SCOTUS Nullifies Obama’s NLRB Recess Appointments

In National Labor Relations Board v. Noel Canning, the U.S. Supreme Court ruled unanimously that President Obama lacked the authority to make his 2012 recess appointments of three members to the NLRB.

At issue was the Administration’s interpretation of the Recess Appointment Clause “to fill up all Vacancies that may happen during the Recess of the Senate.”

The President invoked the Clause after the Republican majority stalled approval of the President’s three National Labor Relations Board (NLRB) nominations. He filled the three open seats by appointment during a three-day break between regular Congressional sessions. The Supreme Court ruled, however, that the President overstepped his power because the NLRB seats had been vacant before the recess.

The Court further held that “a Senate recess that is so short that it does not require the consent of the House under that Clause is not long enough to trigger the President’s recess-appointment power…so the President lacked the authority to make those appointments.”

According to Article 2 of the U.S. Constitution, the U.S. Senate must approve Presidential appointees, but the Recess Appointment Clause permits the President to make appointments when vacancies to key positions in the Federal government arise during the periods between sessions of the U.S. Senate.

The Court reasoned that the authors of the Clause intended Presidential recess appointments to be made to forestall a national crisis or to maintain the regular function of government when the Senate was not in session. But at least one of the NLRB seats had been vacant for more than year, and the President could have waited three days until Senate began its next session.

Now the big question remains…

Are Rulings Made by the NLRB Nullified?

NLRB Chairman Mark Gaston state that the NLRB is “…analyzing the impact that the Court’s decision has on Board cases in which the January 2012 recess appointees participated.”

Because the Supreme Court decision nullifies the President’s recess appointments, the NLRB operated as a two-person Board for more than a year from January 2012 to July 2013. The Supreme Court already had ruled in 2010 that a two-member Board was not authorized to issue decisions, and the Taft-Hartley Act required the NLRB to have three members to reach a quorum.

The NLRB now is composed of five members who were all confirmed by the Senate, meaning that more than 100 NLRB decisions made from 2012 until July 2013 (the period when three of five-member NLRB were not lawfully appointed) are nullified, and that the current NLRB will need to re-hear those cases.

What Triggered the NLRB v. Canning Case?

The NLRB had ordered a Pepsi-Cola distributor to a collective-bargaining agreement with a labor union. Instead, the distributor took their case to the District of Columbia Court of Appeals who ruled that the President’s appointments fell outside of the Clause and that, therefore, the NLRB lacked a quorum to make decisions because the new NLRB members’ appointments were not valid.

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