NLRB v. Noel Canning

Brief Fact Summary.

The Recess Appointments Clause allows the President to fill up all vacancies that may happen during the Recess of the Senate. The National Labor Relations Board (NLRB) requested that a Pepsi-Cola distributor, Noel Canning, execute a collective-bargaining agreement with a labor union. The distributor asked the Court of Appeals for the District of Columbia to set aside the order, claiming that some Board members had been invalidly appointed by the President, who appointed them by invoking the Recess Appointments Clause.

Synopsis of Rule of Law.

To appoint an officer of the United States, the President ordinarily must obtain the advice and consent of the Senate. The Recess Appointments Clause, however, allows the President to appoint an officer during the recess of the Senate.

Facts.

The President must obtain “the Advice and Consent of the Senate” before appointing an “Officer of the United States.” The Recess Appointments Clause, however, gives an exception to the Clause and allows the President to fill up all vacancies that may happen during the recess of the Senate. The National Labor Relations Board (NLRB) found that a Pepsi-Cola distributor, Noel Canning, had unlawfully refused to execute a collective-bargaining agreement with a labor union. Following the Board’s order on the distributor to execute the agreement, the distributor asked the Court of Appeals for the District of Columbia to set aside the order. It claimed that some Board members had been invalidly appointed by the President, who appointed them by invoking the Recess Appointments Clause.

Issue.

• Does the scope of the phrase “recess of the Senate” refer only to an inter-session recess (i.e., a break between formal sessions of Congress)?
• Dos the phrase “vacancies that may happen” refer only to vacancies that first come into existence during a recess?
• In calculating the length of a recess, do we ignore the pro forma sessions, thereby treating the series of brief recesses as a single, month-long recess?

Held.

• No, the phrase “the recess” applies to both intra-session and inter-session recesses. If a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. Its words can refer to both types of recess and founding-era dictionaries define the work “recess” simply as “a period of cessation from usual work.” The Clause’s purpose, which is to give the President authority to make appointments during the recess of the Senate so that the President can ensure the continued functioning of the federal government, demands a broader interpretation. Moreover, history supports the broad interpretation, where Presidents have made thousands of intra-session appointments.
• No, the phrase “vacancies that may happen during the recess of the Senate” applies to both vacancies that initially occur before a recess and continue to exist during the recess. The Clause’s purpose, which is to permit the President to obtain the assistance of subordinate officers when the Senate, due to its recess, cannot confirm them, strongly supports the broad interpretation. Moreover, historical practice over the past 200 years strongly favors the broader interpretation.
• The pro forma sessions do count as sessions, not as periods of recess. The purposes of the Clause support the finding that the pro forma sessions were sessions. The Senate said it was in session and the Senate’s rules clearly indicate that during its pro forma sessions, the Senate retained its power to conduct business. During any pro forma sessions, the Senate can conduct business simply by passing a unanimous consent agreement.

Concurrence.

Justice Scalia, Thomas, Alito

While the majority says of an ambiguous text and a clear historical practice, there is a clear text and ambiguous historical practice. The majority replaces the Constitution’s clear text with its new set of judge-made rules to govern recess appointments. The effect of the judge-made rules on the Senate remains to be seen in practice, but the limitation upon the President’s appointment power is there for the protection of the people. It should not be dependent on Senate action.

Moreover, the majority’s decision damages to the separation-of-powers principle because the decision will have the effect of expanding the Presidency beyond its constitutional bounds and undermining respect for the separation of powers.

Discussion.

• In interpreting the Clause, courts put significant weight upon historical practice and purposes of the Clause. Restricting the Clause to inter-session recesses would frustrate its purpose by making the President’s recess-appointment power dependent upon a formalistic distinction of Senate procedure. The President has also consistently and frequently interpreted the word “recess” to apply to intra-session recesses and has acted on that interpretation.
• While a broad interpretation entails some risks, such as allowing a President to avoid Senate confirmations, the narrower interpretation risks undermining constitutionally conferred powers more seriously and often. It would prevent the President from making any recess appointment that arose before a recess, no matter who the official, no matter how dire the need, no matter how uncontroversial the appointment.
• The Senate is in session when it says it is if it retains the capacity to transact Senate business. The Senate has met that standard here. This is also consistent with the Constitution’s broad delegation of authority to the Senate to determine how and when to conduct its business. Thus, the Recess Appointments Clause does not give the President the constitutional authority to make the appointments here at issue.