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National Labor Relations Board v. Noel Canning

National Labor Relations Board v. Noel Canning is a case with important implications for the scope of the President’s fundamental power to make temporary appointments to Executive and Judicial Branch offices pursuant to the Recess Appointments Clause.  On January 4, 2012, President Obama appointed three members to fill vacant seats on the National Labor Relations Board, an independent federal body responsible for adjudicating charges that employers or unions engaged in unfair labor practices.  On February 8, 2012, three members of the Board, including two of President Obama’s recess appointees, affirmed an administrative law judge’s earlier conclusions that Noel Canning Corporation, a canning and bottling facility, had committed an unfair labor practice.   

Noel Canning then filed a petition for review in the U.S. Court of Appeals for the D.C. Circuit, challenging, among other things, the constitutionality of the President’s appointments. In a ruling inconsistent with the decisions of other federal courts of appeals, the D.C. Circuit, in a panel composed of Judges David Sentelle, Karen LeCraft Henderson, and Thomas Griffith, held that President Obama’s recess appointments were unconstitutional.  The court’s decision, written by Judge Sentelle, limited the President’s authority to make recess appointments to fill judicial and executive vacancies in two significant ways.  First, the court held that the President’s recess appointment power may only be exercised during recesses that occur between enumerated sessions of Congress (that is, inter-session recesses), and not during any intra-session break.  In the second part of its decision, the court ruled that the President could make appointments only to vacancies that arise during the recess, as opposed to vacancies that already existed at the start of the recess.  Judge Henderson joined Judge Sentelle’s opinion in full, and Judge Griffith joined all but the second part (on the ground that it was not necessary to decide the case). 

The federal government filed a Petition for a Writ of Certiorari asking the Supreme Court to review the case, and on May 23, 2013, the U.S. Chamber of Commerce announced that its litigation team would help represent the Noel Canning before the Supreme Court.  On May 28, 2013, Constitutional Accountability Center filed a brief in support of the government’s cert. petition.  On June 24, 2013, the Supreme Court agreed to hear the case. 

On September 20, 2013, CAC filed a merits-stage amicus curiae brief in support of the government.  This brief demonstrates that the D.C. Circuit’s decision is inconsistent with the Constitution’s structure, text and history.  As our brief explains, the Framers of the Constitution adopted the Recess Appointments Clause to ensure that the President could make temporary appointments to the Executive and Judicial Branches when the Senate was unavailable to provide its advice and consent.  When the Framers drafted the Constitution, they created a strong, independent Executive Branch that would be led by a single President.  The President was given responsibility for executing the nation’s laws and (unlike the Senate) was required to “be on duty continuously.”  The Framers recognized that the President would need subordinate officers to aid him in this responsibility, and gave the President the authority to appoint these officers (and federal judges) with the advice and consent of the Senate.  To ensure that the President could continue to make appointments even when the Senate was not available to provide its advice and consent, the Framers adopted the Recess Appointments Clause. 

Contrary to the D.C. Circuit’s interpretation, the Recess Appointments Clause allows the President to make recess appointments during both inter-session and intra-session recesses of the Senate, and to make them to any vacancies that exist during the recess.  Any other interpretation would undermine the core purpose of the Clause.  Moreover, where, as here, the Senate announces that for more than a month it will be holding only pro forma sessions, at which “no business [will be] conducted,” and the Senate has indicated that it is not available to provide advice and consent on presidential nominations, the Senate is functionally unavailable to provide its advice and consent, and the President may exercise his recess appointment authority.  CAC’s brief urges the Court to uphold the President’s exercise of that authority, and reverse the D.C. Circuit’s decision.

The Supreme Court heard oral argument in Canning on Monday, January 13, 2014.