Brief Fact Summary.
After the National Labor Relations Board (Plaintiff) (“NLRB”) took action against Noel Canning (Defendant) for its labor practices, Defendant challenged the recess appointment of three members of the NLRB.
Synopsis of Rule of Law.
The President may appoint officers to fill existing vacancies during both inter- and intra-session recesses so long as they are of significant length.
The NLRB has five members. Under the Appointments Clause, the President appoints the members with the consent of the Senate. The Recess Appointments Clause gives the President the power to “fill up all Vacancies that may happen during the Recess of the Senate,” art. II, § 2, cl. 3. On December 17, 2011, Congress had passed a resolution providing for a series of brief recesses through January 20, 2012. The resolution also called for pro forma sessions where no business would be transacted throughout this series of recesses. President Obama appointed three members to the NLRB on January 4, 2012 during a three-day pro forma session. Following this appointment, the Board found that Defendant, a Pepsi-Cola distributor, had violated the National Labor Relations Act by refusing to execute a collective-bargaining agreement with a labor union. Defendant challenged the Board’s orders, arguing that the orders were void because the three new members had been invalidly appointed and the Board therefore lacked the quorum required to conduct business and issue orders. Defendant claimed that the term “recess” in the Recess Appointments Clause did not include intra-session recesses that occur during a formal session of Congress, but only inter-session recesses that occur between formal sessions of Congress. The second session of the 112th Congress began on January 3, 2012, the day before the appointments were made. Defendant also claimed that the phrase “vacancies that may happen during the recess” only applies to positions that become vacant during that recess. The vacancies filled with the appointment at question here came open before the beginning of the recess during which they were appointed. Finally, Defendant argued that the Senate is not in recess when a pro forma session is ongoing. The Board claimed that pro forma sessions are a sham and would not prevent exercise of the recess appointment power because no business was conducted. The U.S. Supreme Court granted certiorari. [The remainder of the procedural posture is not included in the casebook excerpt.]
Does the Recess Appointments Clause allow the President to make appointments to fill any existing vacancy during both inter- and intra-session recesses so long as they are of sufficient length?
(Breyer, J.) Yes. The President may appoint officers to fill existing vacancies during both inter- and intra-session recesses so long as they are of significant length. The text in the Constitution is ambiguous. Looking to how the power was exercised by those who created it, the authority exists during both inter- and intra-session recesses. This interpretation is consistent with the purpose of the Clause, which is to allow the President to appoint officers and ensure the continuous function of the government while the Senate is away. The Senate is unable to participate in the process during both inter- and intra-session recesses. Presidents exercised the authority granted by the Recess Appointments Clause in this manner during every significant intra-session recess from the founding of the country until the Great Depression. In more recent history, the Senate has shortened its inter-session recesses and added more frequent intra-session breaks and Presidents have correspondingly made an increased number of intra-session recess appointments. The next question is how long a recess must be to allow the exercise of the appointment power. While the Recess Appointments Clause does not state how long a recess is required, the Adjournments Clause, art. I, § 5, cl. 4 requires the consent of the House for the Senate to recess for more than three days. A recess of less than that is not a significant interruption of legislative business and is not long enough to trigger the recess appointment power. A recess appointment has never been made during an intra-session recess of less than 10 days and only very few made during inter-session recesses of less than 10 days. In accordance with historical practice, a recess of more than three but less than 10 days is still presumptively too short to allow the exercise of the recess appointment authority. It is possible that a national emergency or other rare circumstance might require an appointment during a shorter break. Here, the recess was too short to allow for use of the president’s recess appointment authority and so the three members were not validly appointed. Defendant’s additional argument that the vacancies had to be of the type that arose during the recess itself is without merit. The text is again ambiguous, but a broader interpretation of the clause is in line with the purpose of the Clause, to allow the President to ensure the operation of the government when the Senate is not available. A narrow reading of the clause would prevent the President from fulfilling the functions of the federal government while the Senate was in recess. At the time of the founding, this would have been even more problematic. Looking back at history, the authority to fill pre-existing vacancies during recesses has been used since President Madison. The Senate originally opposed this broad interpretation, but has not pushed for the narrow reading for more than seventy-five years. The traditional exercise of this authority should not be changed in a manner that reduces the authority exercised by Presidents for so long. Presidents may validly use the authority to fill vacancies that arise both before and during a recess. Finally, for purposes of the Recess Appointments Clause, the Senate is in session when it says that it is and when, under its own rules, it has the power to transact Senate business. The Senate has been delegated broad authority to determine how and when to conduct its business. However, the Senate’s determination of when it is in session is not absolute. When the Senate does not have the ability to conduct business under its rules, then it is not in session even if it says it is. In the pro forma session in question here, the Senate could and did conduct business, passing legislation. Therefore, the Senate was not in recess. Judgment for Defendant. [The disposition of the case is not included in the casebook excerpt.]
(Scalia, J.) The Court’s result is correct, but its reasoning wrong. The Recess Appointments Clause is not ambiguous. It applies only to inter-session recesses and only to vacancies that arise during those recesses. Contrary to what the majority claims, there is not a consensus in the executive branch, nor an agreement by the Senate, as to the interpretation of the Clause. Because the text is unambiguous, the Court should not look to practices of one branch to reach a decision. When questions concerning the constitutional structure of our government come before this Court, the Court must say what the law is. This is the Court’s role even when the other two branches make adjustments of power between themselves. The separation of powers exists to protect individual liberty and the government structure laid out in the Constitution does not depend on whether one branch allows encroachment by another. Policing the constitutional scheme of government when the political branches fail to do so is one of the Supreme Court’s most important functions. The majority is wrong to rely on the practice adopted by the executive branch without a detailed constitutional analysis.
In this decision, the Supreme Court legitimizes the strategy of using pro forma Senate sessions to prevent the use of the Recess Appointment Clause. Where the party opposing the President controls the Senate, it can effectively prevent recess appointments by using pro forma sessions to never adjourn.