What a difference a word can make.
In a Jan. 25, 2013, decision emphasizing the Constitution’s reference to the word “the” as used in “the recess” in the Constitution’s Recess Appointments Clause, a panel of the U.S. Circuit Court of Appeals for the D.C. Circuit ruled that President Barack Obama had no authority to fill National Labor Relations Board (NLRB) seats on Jan. 4, 2012, after Congress began a new session on Jan. 3.
The president has power to make recess appointments only between sessions of Congress, so-called “intersession appointments,” the court ruled. The board conceded at oral argument that the appointments were not made during the intersession recess. Instead, it was an “intrasession appointment” occurring during the 112th Congress (2011-12), just the same as a 4th of July recess or holiday recess, noted Ronald Meisburg, an attorney with Proskauer Rose in Washington, D.C., who is a former board member.
“This is a very important decision from the standpoint not only of the NLRB, but the entire federal government,” he told SHRM Online.
Three seats on the board came vacant on Aug. 27, 2010, Aug. 27, 2011, and Jan. 3, 2012, respectively. Obama tried to fill all three seats on Jan. 4, 2012, when the Senate claimed it was in session, but the president thought it was in a recess because the Senate was operating only pro forma sessions every three business days from Dec. 2, 2011, through Jan. 23, 2012. The three “recess appointments” to the board were Sharon Block, Terence Flynn and Richard Griffin.
The D.C. Circuit’s ruling came in an appeal of a decision the NLRB issued Feb. 8, 2012. A board member who had been confirmed by the Senate on June 22, 2010—Brian Hayes—plus Flynn and Block decided that Noel Canning, a division of the Noel Corp., violated the National Labor Relations Act by refusing to reduce to writing and execute a collective bargaining agreement reached with Teamsters Local 760.
Noel Canning appealed the decision, arguing that a quorum of three did not exist on the date of the board’s order because two of the three were not validly appointed.
After quickly dispensing with Noel Canning’s statutory challenges to the board’s decision, the D.C. Circuit turned to the constitutional challenge.
The court noted that the president has authority under the Constitution’s Recess Appointments Clause to make recess appointments. The clause states “The president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”
Noel Canning argued that the term “the recess” refers only to the intersession recess, not intrasession recesses. The board argued that “the recess” referred to intrasession recesses, too, noting that the 11th Circuit interpreted the language that way.
The D.C. Circuit agreed with Noel Canning, stating, “As a matter of cold, unadorned logic, it makes no sense to adopt the board’s proposition that when the framers said ‘the recess,’ what they really meant was ‘a recess.’ This is not an insignificant distinction. In the end, it makes all the difference.”
Moreover, the D.C. Circuit noted that for at least 80 years after the ratification of the Constitution, no president attempted intrasession recess appointments, “and for decades thereafter, such appointments were exceedingly rare.”
When the Constitution was written, senators could not just jet in and out of the nation’s capital, so recesses between sessions were much lengthier than they are today and there was a greater need during those times for the president to be able to make recess appointments, Meisburg said.
The D.C. Circuit didn’t stop there. It also ruled that the Recess Appointments Clause’s reference to “happen” meant that the president has power to make recess appointments only for vacancies that arise during the recess.
The board argued that the president may fill any vacancies that “happen to exist” during the recess.
The court rejected this argument. “It would have made little sense to make the primary method of appointment the cumbersome advice and consent procedure contemplated by that clause if the secondary method would permit the president to fill up all vacancies regardless of when the vacancy arose,” the court wrote. “A president at odds with the Senate over nominations would never have to submit his nominees for confirmation. He could simply wait for a ‘recess’ (however defined) and then fill up all vacancies.”
But one of the appeals court judges didn’t join in this portion of the decision. “I agree that the executive’s view that the president can fill vacancies that ‘happen to exist’ during ‘the recess’ is suspect, but that position dates back to at least the 1820s, making it more venerable than the much more recent practice of intrasession recess appointments,” the concurring judge said. “We should not dismiss another branch’s longstanding interpretation of the Constitution when the case before us does not demand it.”
Supreme Court Review Likely
In theory, the government could ask the full D.C. Circuit to rehear the panel decision, but Meisburg thought that was unlikely.
He said it was more likely the board would ask the Supreme Court to review the decision. Already there is a split in the appeals courts and the matter is of such great importance that the high court is likely to grant review in either this or other pending decisions before other appeals courts that involve the same challenge of the recess appointments, Meisburg noted. Challenges are pending in a number of federal circuit courts of appeals, he added.
Significantly, anyone who gets an adverse decision by the board can appeal to the D.C. Circuit, although late Jan. 25 the court issued orders holding in abeyance other appeals presenting the recess appointment issue. The ruling nevertheless “throws decisions by this board into serious doubt,” and leaves questions open, such as whether cases that were decided by the board but never appealed may now be appealed or “collaterally attacked,” he remarked. The board has announced, though, that it will continue to issue decisions in spite of the ruling.
Appeal seems likely, given the White House’s reaction to the opinion. “The decision is novel and unprecedented,” said Jay Carney, the White House spokesman. “It contradicts 150 years of practice by Democratic and Republican administrations, so we respectfully but strongly disagree with the rulings. There have been, according to the Congressional Research Service, something like 280-plus intrasession recess appointments by, again, Democratic and Republican administrations, dating back to 1867. That’s a long time and quite a significant precedent.”
When asked how this decision would affect other recess appointments, such as Richard Cordray as director of the Consumer Financial Protection Bureau, Carney downplayed the reach of the D.C. Circuit’s decision, saying, “The decision that was put forward today had to do with one case, one company, one court. It does not have any impact, as I think the NLRB has already put out, on their operations or functions, or on the board itself. It has no bearing on Richard Cordray. And we, as I said, strongly disagree with it.”
That, however, remains another open question of the impact of the court’s decision (Noel Canning v. NLRB, No. 12-1115 (D.C. Cir.)). Noel Francisco, a Jones Day attorney in Washington, D.C., and former associate counsel to President George W. Bush, for one was unconvinced. “That’s kind of what they have to say. Obviously it’s not the case. It will have broader ramifications,” predicted Francisco, who represented Noel Canning and argued against NLRB recess appointments.
As for board operations while it awaits clarification from the courts, “Activities of the NLRB, such as the prosecution of unfair labor practice cases and the processing of representation petitions by the regional offices, will continue, but the ability to obtain effective board review is essentially eviscerated, at least for the time being,” Meisburg said.
Allen Smith, J.D., is manager, workplace law content, for SHRM. Follow him on Twitter @SHRMlegaleditor.