Word Count: 688
NLRB v. Noel Canning
(2014)
Facts: Noel Canning, a Pepsi-Cola distributor, took part in negotiations with a Union and agreed to a wage and pension plan to go before a vote by the Union membership. The members accepted the proposal but Noel Canning refused to implement the decision. The Unionfiled a complaint to the National Labor Relations Board where they decided that Noel Canning must carry out and sign the new agreement. Canning then appealed to the US Court of Appeals in DC, claiming that the ruling of the board was invalid because the board did not have quorum. The board did not have quorum because 3 of the members were invalidly placed on board. The Recess Appointments Clause allows the president to appoint members to the board without Senate confirmation, while the Senate is in recess. President Obama appointed these members during a series of pro forma meetings by the Senate. The Court of Appeals interpreted the Clause to kick in only during inter-session recesses, not intra-session recesses. These periods between pro-forma sessions were considered intra-session recesses so therefore President Obama’s appointments to the board without Senate confirmation were invalid.
Procedural History: An Administrative Law Judge heard the issue from the board and Noel Canning appealed the ALJ’s judgment to the DC Circuit. DC Circuit affirms for Canning and NLRB appeals to the Supreme Court.
Issues:
- Does the Recess Appointments Clause only allow for “inter-session” appointments?
- Was the Senate in recess sufficient for the Recess Clause to be triggered when Obama appointed the 3 members to the board of the NLRB?
- Does the Recess Appointments Clause allow only for the filling of vacancies that take place during a recess?
Holding:
No, the clause also applies for intra-session recess.
No, the Senate was not in recess long enoughfor President Obama’s appointments to be validbecause 3 days between pro-forma sessions is too short for the clause to kick in.
No, the clause also includes appointments for vacancies that take place prior to recess.
Judgment: Affirmed
Legal Reasoning:
Breyer delivers the opinion of the court:
Look at historical practice to decide the issue. Contrary to the reasoning given by the Court of Appeals, the Recess Clause is interpreted to include intra-session recesses as well as inter-session. Pro-forma sessions are considered actual sessions because legislative business is conducted during them. For the Recess Clause to kick into effect though, the recess has to be longer than the 3-days between pro-forma sessions. Through interpretation and historical precedent, it is concluded that the Clause applies to vacancies that take place during a recess and prior to a recess. The normal method of appointing and confirmation as established by Article 2 Section 2 Clause 2, provides a safeguard on individual’s liberties. Presidential appointments without confirmation during recess are necessary but indeed must be safeguarded from possible abuse. The Presidential appointments examined in this case are indeed invalid.
Scalia delivers a special concurrence and Thomas and Alito concur in judgment:
Looking strictly at the text, it is clear that the Court of Appeal’s reasoning was correct. The Recess Appointments Clause only applies to recess in between formal sessions (inter-session) and vacancies that happen during a recess. Breyer and the rest of the majority are succumbing to the “executive authority”, letting Presidents claim power in question, without any protest. Branch warfare could come from the narrow interpretation of the Appointments Clause by Breyer and the majority. They should have looked at the text rather than ambiguous historical practice. Intra-session recess appointments were unheard of during the first 130 years of the country. The first solicitor general to address the issue of intra-session appointments deemed them unconstitutional. Intra-session appointments weren’t accepted and practiced till 1921. History shows that these appointments are unconstitutional. Majority base their judgment on ambiguous text and historical practice. Concur in judgment but the reasoning of this case risks doing damage to the separation of powers established by the Constitution.
Relations to Other Cases:
Marbury v. Madison
McCulloch v. Maryland
Source of Law:
Article II Section 2 Clause 2
Recess Appointments Clause (Article II Section 2 Clause 3)