On Thursday, June 26, 2014, the United States Supreme Court ruled the three recess appointments President Obama made to the National Labor Relations Board (“NLRB” or “Board”) in January 2012 were invalid and unconstitutional. In NLRB v. Noel Canning, the Supreme Court unanimously ruled that President Obama exceeded his powers when he by-passed Congress and unilaterally appointed three Board members to the NLRB in January 2012. The issue turned on whether Congress was in “recess” at the time the appointments were made – as claimed by the President – or on an intra-session break as claimed by the employer group that filed the case.
All nine Supreme Court Justices ruled that the President exceeded his powers with the January 2012 appointments. However, five Justices (Breyer, Kennedy, Ginsburg, Sotomayer, and Kagan) joined in basing their decision on the fact the Senate break during which the President made these particular appointments was only three days in duration. The majority opinion written by Justice Breyer noted: “Ultimately, having examined the history, we find that to count as a ‘recess,’ a break—whether intersession or intra-session—must normally last for 10 days or more. That is a length sufficient to create a potential need for a presidential appointment.”
The other four Justices (Scalia, Roberts, Thomas, and Alito) joined in a concurring opinion that reads more like a dissent because of its attack on the majority opinion and call for a more literal application of the Constitution and the high court’s separation-of-powers. This opinion, written by Justice Scalia, asserts: “The majority practically bends over backwards to ensure that recess appointments will remain a powerful weapon in the president’s arsenal,” and would likely “have the effect of aggrandizing the presidency beyond its constitutional bounds…well beyond the dispute at hand.”
The immediate fall-out from the Supreme Court’s decision will be dramatic. Over 100 cases involving challenges to the validity of decisions issued by the illegally-appointed Board members are currently pending in the federal court system. According to an NLRB spokesperson, the Board issued over 400 decisions in contested cases between Jan. 31, 2012, and July 16, 2013. The validity of many of these decisions is now in question.
The NLRB does currently have a full five-member panel, all of whom were approved by the Senate. Three of the current members are “Democratic” (considered to be pro-labor) appointees and two are “Republican” (pro-employer) appointees. So, many of the Board decisions and legal holdings rendered invalid by the Supreme Court’s decision could be rehabilitated by the current Board. However, for now, the only guidance the NLRB has provided is the following press release from current NLRB Chairman Pearce:
“The Supreme Court has today decided the Noel Canning case. We are analyzing the impact that the Court’s decision has on Board cases in which the January 2012 recess appointees participated. Today, the National Labor Relations Board has a full contingent of five Senate-confirmed members who are prepared to fulfill our responsibility to enforce the National Labor Relations Act. The Agency is committed to resolving any cases affected by today’s decision as expeditiously as possible.”